Fong Law Group

Reports Find Hospice Deficiencies Go Unaddressed

Hospice care is supposed to help terminally ill patients maintain their quality of life at the end of their life, but two new government reports find that serious problems in some hospices may be actually causing harm to hospice patients. The reports propose that additional safeguards are needed. 

Medicare provides a comprehensive hospice benefit that covers any care that is reasonable and necessary for easing the course of a terminal illness. Most hospice care is provided in the home or in a nursing home. State agencies or private contractors survey hospices to make sure they comply with federal regulations. If a hospice fails to meet a standard, the surveyor cites the hospice with a deficiency. 

A pair of reports by the U.S. Department of Health and Human Services’ Office of Inspector General (OIG) found that from 2012 through 2016, more than 80 percent of hospices surveyed had at least one deficiency and one in five had a deficiency serious enough to harm patients. About 300 hospices were identified as “poor performers” and 40 had a history of serious deficiencies.

The reports found that the most common types of deficiencies involved poor care planning, mismanagement of aide services, and inadequate assessments of beneficiaries. Some of the most serious problems that were found included a beneficiary who developed pressure ulcers on both heels, which worsened and developed into gangrene, requiring amputation of one leg. Another beneficiary developed maggots around his feeding tube insertion site. Both of these beneficiaries had to be hospitalized, which hospice is meant to prevent. 

Meanwhile, the OIG found that it is hard for consumers to learn about which hospices are doing a good job. The Centers for Medicare and Medicaid Services (CMS) launched the Hospice Compare website in 2017, but the site does not include information from the surveyors’ reports. Hospices also do not have as strong reporting requirements as nursing homes. In addition, CMS has limited ability to discipline hospices other than to drop the hospice from Medicare. 

The reports provide a number of recommendations to CMS to improve monitoring of hospices, including the following:

• Expanding the data that surveying organizations report to CMS and using these data to strengthen its oversight of hospices 
• Taking steps to include the survey reports on Hospice Compare
• Educating hospices about common deficiencies and those that pose particular risks to beneficiaries
• Increasing oversight of hospices with a history of serious deficiencies
• Strengthening requirements for hospices to report abuse, neglect, and other harm 
• Ensuring that hospices are educating their staff to recognize signs of abuse, neglect, and other harm
• Improving and making user-friendly the process for beneficiaries and caregivers to make complaints. 

To read the OIG reports, click here and here.

For National Public Radio’s coverage of the reports, click here.

New Rule Once Again Allows Nursing Home Arbitration Agreements

The Trump administration is officially rolling back a ban on the use of arbitration agreements by nursing homes that was initiated under President Obama. The Centers for Medicare and Medicaid Services (CMS) issued a rule that once again allows nursing facilities to use arbitration to settle disputes with residents. 

Historically, nursing homes increasingly asked -- or forced -- patients and their families to sign arbitration agreements prior to admission. By signing these agreements, patients or family members gave up their right to sue if they believed the nursing home was responsible for injuries or the patient's death. The dispute had to be settled in private arbitration, and any injury to the patient did not have to be disclosed to the public. 

In 2017, CMS issued a final rule prohibiting nursing homes that accept Medicare and Medicaid from entering into binding arbitration agreements with a resident or their representative before a dispute arises. In doing so, CMS cited abundant evidence that resolving disputes behind closed doors was detrimental to the health and safety of nursing home residents. 

The nursing home industry immediately challenged this rule in court and a U.S. district court issued an injunction prohibiting it from going into effect. The Trump administration then announced it was reviewing the rule. 

The new rule, which takes effect on September 16, 2019, allows nursing homes to enter into pre-dispute arbitration agreements with residents, but prohibits nursing homes from requiring residents to sign an arbitration agreement as a condition for admission. The rule also adds a requirement that facilities give residents a 30-day period to rescind their agreement to arbitrate disputes. And it prohibits language in the arbitration agreement that prevents residents from contacting federal or state authorities. 

Although under the new rule nursing homes will not be able to require residents to sign arbitration agreements as a condition of admission, nursing home resident advocacy groups contend that the effect will in many cases be the same as forcing residents to sign.  

“[T]he circumstances surrounding the admissions process combined with the enormous disparity of bargaining power means that most prospective residents are unaware of the content of what they are signing or the significance of the decision to enter into a pre-dispute arbitration agreement,” the group Justice in Aging said in a statement. “In short, allowing facilities to ask residents to sign pre-dispute arbitration agreements is unfair to residents and their families and will harm their rights, safety, and quality of care.” 

To read the rule, click here.

Medicaid's Gift to Children Who Help Parents Postpone Nursing Home Care

In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. However, there are circumstances in which transferring a house will not result in a penalty period.  

One of those circumstances is if the Medicaid applicant transfers the house to a "caretaker child."  This is defined as a child of the applicant who lived in the house for at least two years prior to the applicant's entering a nursing home and who during that period provided care that allowed the applicant to avoid a nursing home stay.  In such cases, the Medicaid applicant may freely transfer a home to the child without triggering a transfer penalty.  Note that the exception applies only to a child, not a grandchild or other relative.

Each state Medicaid agency has its own rules for proof that the child has lived with the parent and provided the necessary level of care, making it doubly important to consult with your attorney before making this (or any other) kind of transfer.

Others to whom a home may be transferred without Medicaid's usual penalty are:

• Your spouse
• A child who is under age 21 or who is blind or disabled
• Into a trust for the sole benefit of a disabled individual under age 65 (even if the trust is for the benefit of the Medicaid applicant, under certain circumstances)
• A sibling who has lived in the home during the year preceding the applicant's institutionalization and who already holds an equity interest in the home

Medicare Launches App to Help Beneficiaries Find Out What's Covered

At the doctor's office and want to know if a procedure is covered by Medicare? There is an app for that. Medicare has launched a free app that gives beneficiaries a quick way to see whether the program covers a specific medical item or service. 

The "What's Covered" app allows you to search or browse to learn what's covered and not covered under Medicare Parts A and B, how and when to get covered benefits, basic cost information and other eligibility details. You can also see a list of covered preventive services. The app does not give results for extra benefits that Medicare Advantage plans may cover but that Original Medicare does not, such as certain vision, hearing or dental benefits. 

Examples of the types of questions the app can answer include:

• When are mammograms covered?
• Is home health care covered?
• Will Medicare pay for diabetes supplies?
• Can I get a regular cervical cancer screening?
• Will my Medicare benefits cover a service to help me stop smoking?

Although the app provides beneficiaries with basic information, it doesn’t provide personalized information. It doesn't ask details about each user's specific insurance information, so it doesn't take into account the user's supplemental insurance, co-insurance, and deductibles. Essentially, the app provides another way for Medicare beneficiaries to get the same information that is available online and in the Medicare handbook.

The app is part of an initiative by the Centers for Medicare and Medicaid Services (CMS) focused on modernizing Medicare and empowering beneficiaries. Other initiatives include:

• Enhanced interactive online decision support to help beneficiaries better understand and evaluate the coverage options and costs of original Medicare compared to Medicare Advantage plans.
• New price transparency tools that let consumers compare the national average costs of certain procedures between settings, so people can see what they’ll pay for procedures done in a hospital outpatient department versus an ambulatory surgical center. 
• A new webchat option in the Medicare Plan Finder.  
• New easy-to-use surveys across Medicare.gov so consumers can tell CMS what they want.

To get the new "What's Covered" app, go here: https://www.medicare.gov/blog/whats-covered-mobile-app.

How Gifts Can Affect Medicaid Eligibility

We’ve all heard that it’s better to give than to receive, but if you think you might someday want to apply for Medicaid long-term care benefits, you need to be careful because giving away money or property can interfere with your eligibility. 

Under federal Medicaid law, if you transfer certain assets within five years before applying for Medicaid, you will be ineligible for a period of time (called a transfer penalty), depending on how much money you transferred. Even small transfers can affect eligibility. While federal law allows individuals to gift up to $15,000 a year (in 2019) without having to pay a gift tax, Medicaid law still treats that gift as a transfer.

Any transfer that you make, however innocent, will come under scrutiny. For example, Medicaid does not have an exception for gifts to charities. If you give money to a charity, it could affect your Medicaid eligibility down the road. Similarly, gifts for holidays, weddings, birthdays, and graduations can all cause a transfer penalty. If you buy something for a friend or relative, this could also result in a transfer penalty.

Spending a lot of cash all at once or over time could prompt the state to request documentation showing how the money was spent. If you don't have documentation showing that you received fair market value in return for a transferred asset, you could be subject to a transfer penalty.

While most transfers are penalized, certain transfers are exempt from this penalty. Even after entering a nursing home, you may transfer any asset to the following individuals without having to wait out a period of Medicaid ineligibility:

• your spouse
• your child who is blind or permanently disabled
• a trust for the sole benefit of anyone under age 65 who is permanently disabled

In addition, you may transfer your home to the following individuals (as well as to those listed above):

• your child who is under age 21
• your child who has lived in your home for at least two years prior to your moving to a nursing home and who provided you with care that allowed you to stay at home during that time
• a sibling who already has an equity interest in the house and who lived there for at least a year before you moved to a nursing home

Before giving away assets or property, check with your attorney to ensure that it won't affect your Medicaid eligibility.

Tips on Creating an Estate Plan that Benefits a Child with Special Needs

Parents want their children to be taken care of after they die. But children with disabilities have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility.

Special Needs Trusts           
The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

• A first-party trust is designed to hold a beneficiary's own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary's benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.
• The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary's access to benefits and the funds can be used to pay for the beneficiary's supplemental needs beyond those covered by government benefits. But a third-party special needs trust does not contain the "payback" provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.
• A pooled trust is an alternative to the first-party special needs trust.  Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary's needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance
Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If you've established a special needs trust, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should make sure you have enough insurance to pay for your child's care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents' estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies. 

ABLE Account
An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts. (For a directory of state programs, click here.)

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary's heirs.  

Get Help With Your Plan
However you decide to provide for a child with special needs, proper planning is essential. Talk to your attorney to determine the best plan for your family. 

How to Fight a Nursing Home Discharge 如何抵抗養老院強制住客出院 (中英對照)

Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but family members often accept the discharge without questioning it. Residents can fight back and challenge an unlawful discharge. 

According to federal law, a nursing home can discharge a resident only for the following reasons:

• The resident's health has improved
• The resident's needs cannot be met by the facility
• The health and safety of other residents is endangered
• The resident has not paid after receiving notice
• The facility stops operating

Unfortunately, sometimes nursing homes want to get rid of a resident for another reason--perhaps the resident is difficult, the resident's family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to "dump" the resident by transferring the resident to a hospital and then refusing to let the him or her back in.

If the nursing home transfers a resident to a hospital, state law may require that the nursing home hold the resident's bed for a certain number of days (usually about a week). Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.

In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.

If the nursing home refuses to readmit a patient or insists on discharging a resident, residents can appeal or file a complaint with the state long-term care ombudsman. The resident should appeal as soon as possible after receiving a discharge notice or after being refused readmittance to the nursing home. You can also require the resident's doctor to sign off on the discharge. Contact your elder law attorney to find out the best steps to take. 

老人在養老院定居下來後，當被告知要離開可能會造成很大的打擊。養老院在迫令住宿者離開之前必須遵循某些程序，但家人經常接受開除而不會質疑。住宿者可以反駁並挑戰非法開除。

根據聯邦法律，養老院只能出於以下原因開除住宿者：

• 住宿者的健康狀況有所改善
• 設施無法滿足住宿者的需求
• 其他住宿者的健康和安全受到威脅
• 住宿者在收到通知後未付款
• 設施停止運作

不幸的是，有時養老院想要擺脫住宿者是另有原因的。也許是住宿者很難應付或是住宿者的家人很難應付，或住宿者有醫療補助。在這種情況下，療養院可能不遵循正確的程序，或者可能試圖把住宿者轉到醫院然後拒絕讓他們回來。

如果養老院將住宿者轉移到醫院，州法律可能要求養老院為住宿者保留床位一定日子（通常約一周）。在轉移住宿者之前，養老院必須告知住宿者其床位保留政策。如果住宿者自付，他可能需要支付保留床位的費用，但如果住宿者有醫療補助，醫療補助將支付住宿費。此外，如果住宿者有醫療補助，而床位保留期已過，養老院必須重新安排首個可用床位給住宿者。

此外，如果沒有恰當的通知和計劃，養老院不能開除住宿者。一般而言，養老院必須在出院前的30天發出書面通知，但在緊急情況下允許更短的通知。即使病人被送往醫院，如果養老院計劃不重新接納住宿者，也仍需要做好適當的出院計劃。出院計劃必須確保住宿者有一個安全的地方，最好是靠近他的家人，並概述住宿者出院後會得到的照顧。

如果養老院拒絕重新接納住宿者或堅持讓住宿者出院，住宿者可以向州的長期護理監察專員提出申訴。住宿者應在收到出院通知後或被拒絕入住養老院後儘快提出上訴。您還可以要求得到住院醫生簽字才出院。聯繫您的老人法律師，了解最佳步驟。

Getting Paid as a Family Caregiver Through Medicaid

Caring for an ailing family member is difficult work, but it doesn’t necessarily have to be unpaid work. There are programs available that allow Medicaid recipients to hire family members as caregivers. 

All 50 states have programs that provide pay to family caregivers. The programs vary by state, but are generally available to Medicaid recipients, although there are also some non-Medicaid-related programs. 

Medicaid's program began as "cash and counseling," but is now often called "self-directed," "consumer-directed," or "participant-directed" care. The first step is to apply for Medicaid through a home-based Medicaid program. Medicaid is available only to low-income seniors, and each state has different eligibility requirements. Medicaid application approval can take months, and there also may be a waiting list to receive benefits under the program. 

The state Medicaid agency usually conducts an assessment to determine the recipient's care needs—e.g., how much help the Medicaid recipient needs with activities of daily living such as bathing, dressing, eating, and moving. Once the assessment is complete, the state draws up a budget, and the recipient can use the allotted funds to pay for goods or services related to care, including paying a caregiver. Each state offers different benefits coverage. 

Recipients can choose to pay a family member as a caregiver, but states vary on which family members are allowed. For example, most states prevent caregivers from hiring a spouse, and some states do not allow recipients to hire a caregiver who lives with them. Most programs allow ex-spouses, in-laws, children, and grandchildren to serve as paid caregivers, but states typically require that family caregivers be paid less than the market rate in order to prevent fraud. 

In addition to Medicaid programs, some states have non-Medicaid programs that also allow for self-directed care. These programs may have different eligibility requirements than Medicaid and are different in each state. Family caregivers can also be paid using a "caregiver contract," increasingly used as part of Medicaid planning. 

In some states, veterans who need long-term care also have the option to pay family caregivers. In 37 states, veterans who receive the standard medical benefits packagefrom the Veterans Administration and require nursing home-level care may apply for Veteran-Directed Care. The program provides veterans with a flexible budget for at-home services that can be managed by the veteran or the family caregiver. In addition, if a veteran or surviving spouse of a veteran qualifies for Aid & Attendance benefits, they can receive a supplement to their pension to help pay for a caregiver, who can be a family member. 

All of these programs vary by state. Contact your attorney to find out what is available in your state. 

Protect A Life of Working and Saving from Long Term Care Costs 從長期護理成本中節省及保障工作生活 (中英對照)

“Though complex, existing laws provide people with a pathway to protect their assets, become legally poor and qualify for publicly funded Medicaid to cover nursing home bills.”

Every month, Lawrence Cappiello writes a check to a nursing home for $12,000 to pay for the cost of his wife’s nursing home care. Two years ago, his net worth was $500,000. In less than two years, the Cappiello’s savings will be gone. This unsettling story is explained in the article “How to Keep LTC Costs From Devouring Your Client’s Life Savings” from Insurance News Net. He is suffering from nursing home sticker shock and says he should have known better.

Cappiello was a professor at the University of Buffalo for 25 years. During that time, he taught an introductory course on health care and human services that touched on the costs to consumers. He said it was clear even then, that the cost of health care was going to escalate out of control.

To qualify for Medicaid payments of nursing home care in New York State, residents are permitted to own no more than $15,450 in nonexempt assets. However, elder lawyers, whose practices focus on these exact issues, say that the way to protect the family’s assets, is to take steps years before nursing home care is needed. Some general recommendations:

• Establishing an irrevocable trust, that upon death, transfers the house to the beneficiaries. There must be language that ensures that you have life use of the house.
• transferring savings and other financial assets to an irrevocable trust.
• Gift way assets pursuant to a gifting program

In New York, transfers of any assets must take place more than five years before applying for Medicaid nursing home coverage. In California, such transfers must be done 30 months before applying for Medi-Cal (California version of Medicaid).  In California, an elder law attorney can even devise a gifting program such that assets can be gifted away much less than 30 months before applying for Medi-Cal.  In some cases, people with substantial net worth can gift away their assets in just several months before applying for Medi-Cal. 

That is why planning with an experienced elder law attorney is so critical for families, especially when one of the spouses is facing a known illness that will get worse with time. There are steps that can be taken, but they must be done in a timely manner.

Many older people are not exactly jumping with joy at the idea of handing over their assets, even when relationships with adult children are good.  Setting up an irrevocable trust can be a solution.  By setting up an irrevocable trust, the elderly person can retain full control of the assets while qualifying for Medi-Cal.   

It should be noted that a sick spouse can move assets to a healthy spouse, to make the sick spouse lawfully poor and eligible for Medicaid. There is no look back period or penalty for interspousal transfers. This sounds like a very simple solution. However, these are complex matters that need the help of an experienced attorney. If it were so easy, countless spouses would not be facing their own impoverishment because of an ill spouse.

Reference: Insurance News Net (Feb. 4, 2019) “How to Keep LTC Costs From Devouring Your Client’s Life Savings”

“雖然複雜，但現行法律提供了保護資產的途徑，使人合法地成為窮人，並獲得資格取得醫療補助以支付養老院賬單。”

Lawrence Cappiello每個月都需要寫一張12,000美元支票給養老院，以支付他妻子在養老院的護理費。兩年前，他的淨資產為50萬美元。不到兩年，Cappiello的積蓄將會化為烏有。這個令人不安的故事在Insurance News Net的文章“How to Keep LTC Costs From Devouring Your Client’s Life Savings” 中說到。他給養老院的費用嚇一跳，但說他自己早應該知道。

Cappiello在布法羅大學當教授已有25年。期間，他教授了關於醫療保健和公共事務的入門課程，這些課程涉及消費者要負擔的費用。他說當時已明白到醫療保健的成本會如脫彊野馬般失控。

要獲得紐約醫療補助的養老院護理資格，居民可以擁有不超過15,450美元的非豁免資產。然而，專精這些問題的老人法律師說要保護家庭資產的話就要在需要入住療養院之前的數年便要採取行動。一些基本的建議：

• 成立不可撤銷的信託，在去世後將房屋轉移給受益人。必須有文字去確保您擁有房子的使用權
• 將儲蓄和其他金融資產轉移到不可撤銷的信託
• 依據贈予計劃贈予資產

在紐約，任何形式的資產轉移必須在申請療養院的醫療補助五年前進行。在加州，此類轉移必須在申請白卡的30個月前完成。在加州，老人法律師可以創立一個贈予計劃，以便在申請白卡之前，資產可以在不用在申請白卡之前30個月完成。在某些情況下，擁有大量淨資產的人可以在申請白卡之前的幾個月內贈送他們的資產。

這就是為什麼與經驗豐富的老人法律師一起規劃對家人來說如此重要，特別是當配偶面對每況愈下的已知疾病時。有一些步驟可以採取，但必須及時完成。

即使與成年子女的關係良好，許多老人對於交出資產的想法也並不喜悅。成立不可撤銷的信託是一種解決方案。通過成立不可撤銷的信託，老人可以在符合白卡資格的同時能全權控制自己的資產。

應這樣說，患病的配偶可以將資產轉移給健康的配偶，使患病的配偶合法地成為窮人並獲得醫療補助資格。對於配偶間轉移並沒有回顧期或罰款。這聽起來像一個非常簡單的解決方案, 但這些都是複雜的事情，需要經驗豐富的律師的幫助。如果這麼容易，便不會有無數配偶因患病的配偶而使自己面臨貧困。

參考: Insurance News Net (Feb. 4, 2019) “How to Keep LTC Costs From Devouring Your Client’s Life Savings”

Still Wondering Why You Need to Review an Estate Plan? 還在想為什麼你需要審查您的資產產計劃？ (中英對照）

“An estate plan is the guide to how you want your personal and financial affairs to be handled, in the event of your incapacity or death. As life changes, your guide changes with it.”

One of the most common mistakes in estate planning is thinking of the estate plan, as being completed and never needing to be reviewed. That is similar to taking your car for an oil change and then simply never returning for another oil change. The years go by, your life changes and you need an estate plan review.

The question posed by the New Hampshire Union Leader in the article “It’s important to periodically review your estate plan” is not if you need to have your estate plan reviewed, but when.

Most people get their original wills and other documents from their estate planning attorney, put them into their safe deposit box or a fire-safe file drawer and forget about them. There are no laws governing when these documents should be reviewed, so whether or when to review the estate is completely up to the individual. That often leads to unintended consequences that can cause the wrong person to inherit, fracture the family and leave heirs with a large tax liability.

A better idea: review the estate plan on a regular basis. For some people with complicated lives and assets, that means once a year. For others, every three or four years works. Some reviews are triggered by changes in life, including:

• Marriage or divorce
• Death
• Large changes in the size of the estate
• A significant increase in debt
• The death of an executor, guardian or trustee
• Birth or adoption of children or grandchildren
• Change in career, good or bad
• Retirement
• Health crisis
• Changes in tax laws
• Changes in relationships to beneficiaries and heirs
• Moving to another state or purchasing property in another state
• Receiving a sizable inheritance

What should you be thinking about, as you review your estate plan? Here are some suggestions:

Have there been any changes to your relationships with family members?

Are any family members facing challenges or does anyone have special needs?

Are there children from a previous marriage and what do their lives look like?

Are the people you named for various roles—power of attorney, executor, guardian and trustees—still the people you want making decisions and acting on your behalf?

Does your estate plan include a durable power of attorney for healthcare, a valid living will, or if you want this, a DNR (Do Not Resuscitate) order?

Has your estate plan addressed the possible need for Medicaid?

Do you know who your beneficiary designations are for your accounts and are your beneficiary designations still correct? Your beneficiaries will receive assets outside of the will and nothing you put in the will can change the distribution of those assets.

Have you aligned your assets with your estate plan? Do certain accounts pass directly to a spouse or an heir? Have you funded any trusts?

Finally, have changes in the tax laws changed your estate plan? Your estate planning attorney should look at your state, as well as federal tax liability.

Just as you can’t plant a garden once and expect it to grow and bloom forever, your estate plan needs to be reviewed, so that it can protect your interests as your life and your family’s life changes over time.

Reference: New Hampshire Union Leader (Jan. 12, 2019) “It’s important to periodically review your estate plan”

“資產計劃是您在喪失工作能力或去世時如何處理個人和財務事務的指南。隨著生活的變化，你的指引隨之改變。“

資產規劃中最常見的錯誤之一是認為資產計劃已經完成並不需要再審查。這就好像於您將汽車換油然後就不再換油了。隨著歲月流逝，你的生活起了變化，你是需要審查您的資產計劃。

New Hampshire Union Leader在“It’s important to periodically review your estate plan”一文中提出問題是您要何時去審查您的資產計劃。

大多數人從他們的資產規劃律師取得他們的遺囑和其他文件的原檔，將文件放入他們的保險箱或防火文件抽屜中接著便忘記了。沒有法律規定應何時審查這些文件，因此是否或何時審查完全取決於個人。這通常會引致意想不到的後果，導致錯誤的人繼承，破壞家庭並給繼承人帶來巨額稅務。

更好的意見是：定期審查資產計劃。對於一些生活和資產複雜的人來說，應每年審查一次。對於其他人，每三到四年審查一次。有些是因為生活起了變化而需要審查，包括：

• 婚姻或離婚
• 死亡
• 資產發生巨大變化
• 債務大幅增加
• 遺囑執行人，監護人或受託人去世
• 子女或孫兒的出生或收養
• 職業變化，無論好壞
• 退休
• 健康危機
• 稅法的變化
• 與受益人和繼承人的關係發生變化
• 搬到另一個州或在另一個州購買房產
• 繼承了可觀的遺產

在審查您的資產計劃時，您應該考慮什麼？以下是一些建議：

您與家人的關係是否有任何變化？

有沒有家人陷於困境之中或是有沒有人有特殊需求？

以前的婚姻中是否有子女，他們的生活如何？

您為各種角色命名的人 - 律師，遺囑執行人，監護人和受託人 - 仍然是您想要為您做出決定並代表您行事的人嗎？

您的資產計劃中是否包括醫療授權書，有效的遺囑，或者如果您需要，還包括DNR（不要急救指令）？

您的資產計劃中是否有提到醫療補助 (白卡) 的需求？

您知道您銀行帳戶的指定受益人是誰以及您的指定受益人是否仍然正確？您的受益人繼承這些遺囑之外的資產，而您遺囑中的內容並不會推翻這些資產的分配。

您是否將您的資產與資產計劃保持一致？某些帳戶是否直接傳給配偶或繼承人？你有把您的資產注入您的信託中嗎？

最後，稅法的變化是否改變了您的資產計劃？您的資產規劃律師應該查看您所在的州以及聯邦稅務。

正如你不能一下子建立了一個花園並期望它永遠成長和開花一樣，你的資產計劃需要進行審查，這樣可以保障你的利益，因為你的生活和家庭情況會隨著時間而變化。

參考：New Hampshire Union Leader (Jan. 12, 2019) “It’s important to periodically review your estate plan”