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Estate Planning

Ohio Will Changing Mental Capacity

In 2016, the Ninth District Court of Appeals decided that a person under legal guardianship can execute a valid will, ruling on Ohio will changing mental capacity.  Even more notable are the reasons: he suffered from schizophrenia, post traumatic stress disorder, had a low IQ and was a frequent drug user.  Using traditional analysis, the court determined that he had the capacity to execute a will. 


Ohio Medicaid Waiver Program

The Ohio Medicaid Waiver Program funds the services necessary to allow the individual to stay in his or her own home.  These programs “waive” Medicaid regulations so individuals can use community-based programs that cost far less than nursing homes and other institutional residential settings.  This program addresses the high cost of nursing home care and people's desire to stay in their own homes.



Medicaid Planning In Ohio Can Include Annuities

Medicaid planning in Ohio can include annuities.  An annuity can be an effective Medicaid planning and estate planning device, if done properly.  This article will focus on annuities as a Medicaid planning device.   An annuity is a product sold by insurance companies, which pays you back in payments over a set number of years.  I discussed annuities in more detail in a previous article.   (more…)

Estate Planning In Ohio Can Include Annuities

Estate planning in Ohio can include annuities.  An annuity can be an effective estate planning and Medicaid planning device, if done properly.  This article will focus on annuities as an estate planning device.   An annuity is an insurance product, which does one of the following: pays you back in payments over time; pays you back when you decide to draw the money out; or pays named beneficiaries when you die.  An immediate annuity pays fixed payments over a certain number of years or over your lifetime.  A deferred annuity earns interest and dividends until you decide to withdraw the money.  Annuities are different than bank accounts, as they are not insured by the FDIC.  Some of the money is guaranteed by the Ohio Guaranteed Insurance Fund.  While the amount of gain is taxed, the original investment is not.   (more…)

Long Term Care Insurance’s Role in Medicaid Planning

Many seniors will be faced with the need for long-term care. The costs of long-term care can be devastating to the spouse living at home, depleting the savings accumulated over a lifetime in just a few years. Medicare only fully covers 20 days of skilled nursing care after a three day stay in a hospital. After the first 20 days, Medicare pays only a small part of the skilled nursing bill for another 80 days. Medicare pays for hospice services such as counseling and pain management medications, but not for hospice room and board. As you can see, Medicare benefits run out quickly, resulting in a shift to Medicaid. However, Medicaid limits how much one can keep and still qualify for benefits. Because Medicaid is a program to provide health care to the poor, one must be poor to qualify.   (more…)

Medicaid Eligibility For Long-Term Care In Ohio

How does one determine Medicaid eligibility for long-term care in Ohio?  First, we should differentiate Medicaid from Medicare.  Medicare is insurance.  Medicaid is a need-based program.   Need-based programs are aimed at individuals who cannot afford to pay for the services themselves.   In order to qualify for Medicaid, an individual must qualify for all three of the following:
  1. Categorical eligibility;
  2. Countable income must be at or below a certain level; and
  3. Countable, available resources must be at or below $1,500.
  Categorical eligibility.  An individual can be eligible for Medicaid to pay for nursing home care only if he or she is 65 or older, blind, or disabled.  If the person meets the nursing facility level of care, that person is presumed to be disabled.  The nursing facility level of care depends on the individual requiring:  hand-on assistance with two activities of daily living; hands-on assistance with one activity of daily living and assistance with medications, supervision 24 hours per day to prevent harm, skilled care at less than skilled level, and skilled care at skilled level.   (more…)

More Problems From Online Legal Document Services

I have been hearing more problems from online legal document services.  It is bad enough that there are instances of such documents being thrown out by courts.  See my blog and links to such instances:
Should you use online legal document services?

Medicaid Guidelines for long term care in 2015

The following sets forth Medicaid guidelines for long term care in 2015.  Medicaid is a valuable resource for seniors in paying for long term care, such as care in a nursing home, assisted living, or in-home care.  Under the guidelines, the patient and patient’s spouse can keep specific amounts of their monthly income and savings. (more…)

How Do You Make a Will

How do you make a will?  A will is a document that contains instructions setting forth how a person would like to have his or her probate property distributed upon death.  The person must be at least eighteen years old, of sound mind and not under undue influence.   A will must be signed and properly witnessed by two people.  Any changes to a will are subject to the same requirements as the original will.  A will is valid as long as it is not revoked, which occurs when a new will is completed.  A will can also be revoked by destroying it with the intention of revoking it.  Mere destruction may not always be valid if there are exact copies of the will in existence.  While probate court generally requires an original will, there are instances when they will accept the use of a copy.  A will usually reduces probate costs in a number of ways.  First, it can waive the bond requirement.  Second, it can grant powers to the executor, reducing the need and additional expense of requesting permission from the court for such actions.  Third, it can prevent the need for the heirs to fix or undue the effects of intestate distribution under Ohio law.  This often occurs when the children give their share of the estate back to their surviving parent (surviving spouse). (more…)

Taxes Affecting A Decedent’s Estate

Are there taxes affecting a decedent’s estate? Ohio repealed its estate tax effective January 1, 2013.  Does that mean there is no estate tax?  Of course not.  I would not be writing an entire article on this topic if that were the case.  This article is being written in 2014, so if you are reading this later, the numbers may have changed. There are no taxes on the first $5,340,000.00 of an estate. After that, the tax rate is 40%.  However, one can deduct the funeral and burial costs, payment of debts, gifts to charities and most transfers to the surviving spouse.  A surviving spouse may wish to file a federal estate tax return, as that may allow the surviving spouse to leave $10,680,000.00 in the estate without having to pay federal estate taxes. (more…)

Should you use online legal document services?

Should you use online legal document services?  In 2014, the Florida Supreme Court ruled that a will drafted with online legal document company E-Z Legal Form did not say who should get property not specifically listed in the will.  Instead, the will only specifically left everything to a sister, then a brother.  The Court also ruled that a handwritten note written and signed by the decedent was unenforceable under Florida law.  Therefore, all property owned by the decedent passed to the decedent’s nieces, although neither of them were named in the will.  While the will and handwritten note appeared to favor leaving everything to her brother in this particular situation, the Court was forced to resort to the Florida intestate statute to determine who was to receive all property not listed in her will.  One of the justices commented that this case of using pre-printed forms and drafting a will without legal assistance “penny-wise and pound-foolish.”  See the opinion and a related article: http://www.floridasupremecourt.org/decisions/2014/sc11-2147.pdf http://www.flascblog.com/e-zer-said-than-done-court-considers-will-prepared-with-commercially-available-form/ (more…)


A will is a document that sets forth how a person's probate property will be distributed upon death.  To be valid, a will must meet the following requirements: the person making the will must be at least 18 years old and be of sound mind; with some limited exceptions, the will must be written and signed; and the will must be witnessed by at least two persons. (more…)

Financial Power of Attorney

A financial power of attorney gives another person the power to handle that person’s financial matters.  The power of attorney can either designate that the attorney-in-fact’s authority begins immediately after it is executed or that such authority will "spring" into effect at a future date or upon a particular event.  Usually, the springing event is when two examining physicians determine that the principal is no longer competent.  Before choosing a “springing” power of attorney, it is important to consider the need for the agent to show proof of the event.  However, such powers always terminate upon the death of the principal. (more…)

Health Care Power of Attorney

A health care power of attorney gives another person the power to make health care decisions if the person cannot make them for himself or herself, regardless of whether or not the condition is terminal.  The power of attorney is bound by that person’s wishes, which includes the instructions within a living will.  

Living Wills

In the event that a person becomes terminally ill or permanently unconscious, a living will is a road map of that person’s wishes as to the use of life-support, the course of medical treatment, and the use of artificial fluids and feeding.  Living wills are only used when the person is unable to communicate their wishes.  While the person making the living will can revoke or change it at any time, it cannot be revoked or changed by anyone else.