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Protect Your Assets When Care is Needed (with transcript)

Brian Andrew Tully is the founder of Tully Law, PC. He is Certified as an Elder Law Attorney and has been practicing elder care law and estate planning since 1998. Tully Law offers a comprehensive service called Life Care Planning which combines asset protection, Medicaid planning and applications, care coordination, nursing home advocacy and crisis intervention. Brian was inspired by his own family’s caregiving and aging challenges and entered the field of elder care right after law school. He has advocated for and helped caregivers and their aging parents ever since.


Frank Samson: Welcome to Boomers Today. I’m your host, Frank Samson. Of course each week we bring you important useful information on issues facing baby boomers, their parents and other loved ones. And I just want to thank everybody for all their support

Today we have with us Brian Tully. Brian is the founder of Tully Law, PC. He is certified as an elder law attorney and has been practicing elder care law and estate planning since 1998. Tully Law offers a comprehensive service called life care planning, which combines asset protection, Medicaid planning and applications, care coordination, nursing home advocacy and crisis intervention. Brian was inspired by his own family’s caregiving and aging challenges and entered the field of elder care right after law school. He has advocated for and help caregivers and their aging parents ever since. Brian, thank you for joining us on Boomers Today, really appreciate it.

Brian Tully:       It’s my pleasure, Frank. Thank you for having me.

Frank:               Yeah, this is such a, I mentioned we had a chance to talk a moment before starting the show here and I mentioned that I’ve talked to attorneys in the past and in the area of elder law, but we can’t talk about it enough. It’s such an important subject matter, so I really appreciate it. And speaking about elder law, I know it’s a term that’s you hear all the time, but, and I know that’s kind of, you’re an elder law attorney, but maybe you could, I’ll give you a two part question here. One, maybe explain to our listeners more what elder law is, because that’s a big term and a kind of what brought you into this area of area of law.

Brian:               Sure. Well, thank you. Thank you. It is, it is a big, broad area and it is that way because it’s really defined by the amount of needs and help that is required by our aging population and our soon to be aging boomers, of course. So elder law itself is the area of law that is really defined by the person that needs it. Whereas a criminal attorney focuses on criminal laws or a bankruptcy attorney focuses on bankruptcy laws. An elder law attorney is focused on the elder, so it can actually draw in many different areas of law from taxation intestacy probate matters, inheritance issues, asset protection, government benefits. There’s a tremendous body of law that all comes together to focus on the elder versus the one specific area of law helping a specific person and it’s been around for over 20 years at this point, closer to 30 years.

And as you can imagine as the boomers are aging close to 10, 11,000 a day or turning 65 what we’re dealing with is an influx of the demographics and the great need that our nation is seeing and helping our aging seniors all the time. I got involved with elder care, like you said, right after law school, but it began way before that. I was in college at the time when, just to give you a little brief history, I was in college at the time and my grandfather on my father’s side was a lawyer practicing in New York City in Brooklyn. And he had sat me down when I was about 19 thinking that I was going to go to college for this degree and pursue that. And he and grandma sat me down and said that they thought that I should continue on to law school and that I’d be a great lawyer. And that meant a tremendous, a lot to actually direct and change my future.

Not only were my dad’s parents only a couple minutes away, but my mom’s folks were right next door. And what we dealt with through the years was a tremendous amount of issues for Tina and health concerns and frailty as she got older. So literally from 10 years of age, up until about my early thirties we dealt with care issues, home care, rehabilitation, facilities, frailty, the walkers, the canes, everything you could imagine through the years for all four of my grandparents and as a teenager there was really nothing I can do. I just got driven around and waiting rooms and doctor visits and dialysis. And I really saw what this aging was doing to those that I loved so, so dearly. And not only did I see it from my grandparents’ perspective individually, all four of them, but I saw it from the children’s perspective. My dad, again, having 10 siblings, they struggled.

There was a lot of them that were local and they still had a hard time dealing with the care issues. And then on my mom’s side, it was just her and her sister, but her sister was down in Florida, so it was really on her shoulders. So I saw one scrambling and I saw eight scrambling. And it was difficult from the caregiver perspective also. So really, when I got out of law school, there was really nothing else for me to do except try to help other grandparents and really try to help other caregivers deal with all of those concerns. And that’s what I’ve been doing ever since.

Frank:               That’s great. Great story. I think a lot of us in the senior care industry have gone through some similar stories. There is usually something in our own family that kind of brought us in. So I appreciate that. I know your firm, I mentioned in the introduction and introducing you, that you have comprehensive services that you’ve called life care planning, which also is kind of a generic term, so maybe you could explain that a little bit.

Brian:               Sure. Thank you. So I came across life care planning about 14 years ago. It actually is a practice model for elder law attorneys throughout the nation. There’s an organization called the Life Care Planning Law Firms Association, and there’s a number of firms that belong to this group, and the group helps support this type of model, which I implement. And what life care planning means is that we come alongside the family and the caregivers and help them not only plan for the legal and the financial, like every elder law firm does, but we also help them plan for the care. So we looked at the care and realize that a client might be sitting across from me at that conference room table because somebody in the nursing home said, “You need Medicaid,” or because somebody said, “Hey, you got to go protect the house.” So they’re thinking legal. They’re thinking financial.

But for us, elder law is really elder care and we come alongside the family and deal with, again, the legal, the financial, and the care issues over time. So it’s not a transaction, it’s not just putting together a trust or doing a Medicaid application, it’s an annual service. And it’s very dynamic because elder care is dynamic.

So every life care firm out there is going to have an advocate on staff, a non-lawyer, such as a geriatric social worker or an RN or a patient advocate that will come alongside and hold the family’s hand and the caregiver’s hand through the process. So I’m proud of the model. It really does help people and quite honestly, it’s what would have helped my family decades ago. It’s growing left and right and it’s probably the future. It should be the future of what elder law practice is.

Frank:               Great. You know, you mentioned Medicaid, which, I know, in the state of New York where you’re based, that’s what it’s called. In California, where I’m based, is called MediCal. Most States it’s called Medicaid, but I just want to make sure everybody understands we’re talking the same subject matter if your particular state is called something else. But the idea of Medicaid was really to help those in need of care and out of money and needed more medical care. I know that’s the intention, but that’s not necessarily the reality, is it?

Brian:               Well the intention is, like you said, for Medicaid to cover long-term longterm care costs for those that are eligible. It began back in the ’60s with Medicare as the sister program. Medicare was meant for medical needs and Medicaid was meant for those long-term care, parts of Medicaid were meant for that long-term care need. You’re right, it has different names in each state and it actually is administered differently in each state. So there’s different rules for every state. We’re based in New York. New Jersey, Connecticut, even in this Northeast region, they all treat Medicaid and administer it differently in each state. So what works for us in New York may not necessarily work in other states, which makes it a more complicated. So what we do for families is help them, and elder law attorneys in general, is help certain families, help them become eligible so that they can get the inordinate expense of long-term care covered.

The way our system works, Medicare, as the health insurance it is, we’ll cover medical needs, it’ll cover the doctors and the hospitals, the vast majority of the costs. doctors and hospitals and skilled rehabilitation facilities. However, if somebody is stricken with a custodial or chronic need, such as some of the Alzheimer’s or Parkinsonian issues, those needs may not all be medical, which means the family is often left to pay for the care themselves. In New York, home care can run anywhere from four to $12,000 a month for home care. Nursing home care can be 14 to $20,000 per month. And even in New York and even on long Island and New York City, that can make a family destitute within a year or two. So Medicaid really has become the payer of long-term care for the middle-class. Yes, of course, those folks with less assets can become eligible sooner and quicker, but we use the regulations and the laws that the federal government and the state and the county administers and to make people eligible so that they don’t have to become destitute because of their diagnosis.

Frank:               And to make them eligible, I know there’s different methods, but the one that I have seen most common is setting up a particular type of trust. The term I’ve heard is irrevocable trust. So maybe you could talk about that a little bit and maybe the difference because somebody that’s listening going, “Oh my father’s got a trust. All right, we’re good.” But maybe that could be a revocable trust. So maybe you could explain the difference between the two and how that is planned out. I know that you probably need more than a few minutes to do that, but I’ll let you give it a shot.

Brian:               I’ll do my best. Yeah, this could go on for hours, but we don’t have that. You’re right. So there are different types of tools that are used for different purposes. The primary tool that an elder law attorney in New York and a lot of other states utilize is something called an irrevocable trust. Irrevocable is what makes the trust itself a protective type of trust. There’s different terms and language that gets built into the trust so that it is irrevocable. The term itself is somewhat can be intimidating for certain clients, but a good attorney will sit down and explain that yes, while it is irrevocable, there’s a lot of flexibility and a lot of control and a lot of tax benefits that are infused into that trust so that the client, the elder, can be comfortable and secure with this type of a planning strategy.

The opposite of that is a revocable trust. A revocable trust allows the grantor or the settler or the trust-maker as they are called in different states to retain all control and all flexibility. It’s revocable, so in essence that type of a trust can be created on a Monday and assets can be put in on Tuesday, but the trust can be amended or revoked on Wednesday. There’s full control all the time. The irrevocable trust has a purpose of asset protection. So there is control and there is flexibility and there is security, but it has to be defined and it has to be laid out so that the client and the family know how to use the trust to gain the protection that it’s meant to offer.

If it’s done properly, then the assets within the trust will be protected. There is out there what’s called a five-year look back throughout the nation and in some states it’s treated differently than others. But the bottom line there is the timing of a client’s asset protection is crucial. You always want to make sure that you’re doing it as early and as healthy as possible so that you can endure and live through comfortably that five-year look back and again, the trust is the main tool that we use.

Frank:               Does the look-back apply if an irrevocable trust is set up?

Brian:               Yes. So in New York, the look-back will apply to any application for Medicaid benefits or MediCal or Mass Health, whatever the benefits are, in a nursing home setting. So in New York, the five-year look-back will apply, and what the lookback means is where the social services agency, the Medicaid agency will look back over five years of assets. They’ll look at every account, whether it’s a checking or a savings, annuity, life insurance, IRA. They look at all of them to see what’s been done with the money so that they can determine whether or not the person is eligible. And if money was moved around, in New York, to a child or to an irrevocable trust or to really anybody else, then they’re going to be hit with a transfer penalty. There are always exceptions to the penalties, such as money going back and forth between spouses or a disabled child, et cetera. Each state has different exceptions, but primarily when assets are transferred for protection purposes to a child or an irrevocable trust, yes, that’ll be subject to that five-year look-back.

Frank:               You had mentioned a nursing home setting. The fastest growing type of senior living is more assisted living and memory care, which isn’t a so-called medical facility as a nursing home and hospital. And so what did it apply in the same manner at a licensed assisted living location?

Brian:               Okay, good question. So I can speak to New York and their different levels of care. Exactly like you said, there’s independent living, there’s assisted living, there’s memory care and, of course, nursing facilities. So in New York, Medicaid has a program to cover nursing facilities, subject to being eligible and New York has a community-based Medicaid program where Medicaid will pay for an aid to come within the home and to assist the client with what’s called the activities of daily living and some other incidental issues. In New York, that community-based Medicaid program can in fact pay for several, and I’m going to say several because that’s all it is, different assisted livings because New York has an assisted living program which Medicaid will pay for.

The problem with that is there’s limited beds throughout the state. It’s not a very popular, it is popular, but there’s just not a lot of beds to fulfill the need. They need more of these assisted livings covered by Medicaid, but it doesn’t happen. So the private pay assisted living facilities, they don’t accept Medicaid for the room and board, but some of them allow Medicaid to actually pay for an aid within the assisted living. And assisted livings are a wonderful good step and hopefully the family, the individual, can stay in the insistent assisted living environment for the balance of their life. But in New York, most of those facilities are private pay.

Frank:               Got it. Brian, thanks for that great explanation. I know it’s not an easy one to explain, which is the reason why I certainly recommend to our families we work with that they should get the advice of an attorney especially in this type of situation. I know you said you’re based in New York. Where can people go to connect with you?

Brian:               Our website is Tully, T-U-L-L-Y, elderlaw.com. Tullyelderlaw.com. We’re located, as I said, on Long Island. Our phone number is (631) 424-2800, (631) 424-2800 and again we do work in New York and represent New York families. For other states, there are several national organizations. Again, the one I mentioned earlier, the Life Care Planning Law Firms Association, LCPLFA, I believe it’s dot org, that has a list of members that practice this type of a model with the advocacy and the hand-holding throughout the whole process. Other than that you have what’s called the National Academy of Elder Law Attorneys, which is NAELA. Again I believe it’s dot org. In addition you have those of us that are certified in elder law and we’re certified by what’s called the National Elder Law Foundation, which is NELF.org. And through those different associations you can actually find different attorneys that practice within the elder care and elder law within your area. So thank you for asking.

Frank:               Would it be your recommendation, if they weren’t speaking to you and they were in another state, that they look for an attorney with that type of certification?

Brian:               I do recommend a life care attorney, life care planning attorney or a certified elder law attorney. What we’re finding in this day and age is that there are, because the demographics, you’re seeing a tremendous amount of attorneys that are saying they’re practicing elder law, but it’s really a side venue, if you will. They are doing bankruptcy and divorce and personal injury and they say they are elder lawyer as well. And that unfortunately is not always serving the client in the best way. Elder law is something all we do every day of the week and there’s not enough hours in the day. So you shouldn’t be, a part-time attorney doing elder law is not the way we recommend families get the best help possible. So again, life care planning or the certified elder law attorneys are a great way to be sure that that attorney is experienced.

Frank:               Great. Thank you for that. So we don’t have a whole lot of time. Things are, you know, time flies when we do this, but I do want to take a moment and talk about what’s called a power of attorney.

Brian:               I’m grateful you brought it up because it is a huge issue. My eldest daughter just left for college this past September and guess what? We had her sign a power of attorney. It’s important for every adult to have a power of attorney. Now that needs to get qualified. There are different types of powers of attorney and there’s different language that can go into different powers of attorney. The because of the national audience, the strong recommendation is when it comes to aging and elder care issues, that an experienced estate planning and elder care attorney be consulted for a power of attorney. In New York, we have a very complicated process. New York State has changed the laws several times in regard to the actual form itself. And now we have two different parts to the power of attorney, which make it complicated, number one.

The power of attorney allows somebody to do that for you and it needs to be as comprehensive as possible. If it doesn’t exist or if it’s not sufficient, then the family is going to be thrust into what’s called a guardianship proceeding, or in other states, they call it a conservatorship and it can be months upon months and very, very expensive to undertake. So the strongest advice I can give to folks is get the proper comprehensive power of attorney done by an experienced elder care attorney. Period.

Frank:              I’ve seen that happen with the guardianship with families and it’s horrible. It really is. One thing I think I’d like you also to clear up is that, well two things. Number one, many seniors think they’re losing their independence, so they are reluctant to sign over their power of attorney. Having a power of attorney doesn’t mean that that person lose their independence of decision making. It’s only if they lose the mental capacity, then it kicks in. Correct?

Brian:               That’s right. It does not remove powers from the client or the principle, as the form calls it. So the client, your mom, your dad, yourself, you can always make your own decisions and do your own things. This power of attorney just kind of sits there waiting. In some states, they have what’s called a springing power of attorney, which means it’s not even effective until capacity is lost. We don’t prefer that method here at our practice and we don’t recommend it because at the end of the day, if you’re going to trust your agent to help you, we’d rather have that access and ability available at any time without having to go through doctors signing letters about capacity being lost. But the springing power of attorney does exist. And, again, as you said correctly, it does not remove authority and power from the client themselves. Right.

Frank:               The other misconception out there is sometimes married couples feel that they don’t need to do it because they’re married and the spouse can make these types of decisions and that’s not correct. Am I right?

Brian:               You’re absolutely correct that. And so a joint account, for example, that a husband and wife might have together. Yes, you have access to that joint checking account. But if the wife has been out working for years and she’s got a large 401k or she has her own health insurance, her own life insurance or the husband does, there’s no access to those assets and accounts because it’s in that person’s name individually. So that’s where the power of attorney is often overlooked, but where it’s really most needed and it’s only through that power of attorney where if God forbid something happens to that spouse, the other one can step in and deal with the IRA, deal with the health insurance, make asset protection steps so that if Medicaid’s necessary then that can be applied for once those assets are moved around. So again, very crucial that spouses have it.

Frank:               Great. Brian Tully, Tully Elder Law. Check it out at Tully, T-U-L-L-Y, elderlaw.com. And Brian, I just want to thank you so much for joining us today. Really appreciate it.

Brian:               It’s my pleasure. Thank you. And all that you’re doing is great in that you’ve got so many seniors out there in need of information. So thank you.

Frank:               Well, thank you and thank you everybody out there. Just be safe out there and we’ll talk to you on our next show of Boomers Today.

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