Grimaldi & Yeung

Webinar # 3: May 5th at 6 PM EST!

Planning for Long Term Care

Wednesday, May 5th, 2021

6:00 - 7:00 PM EST 

Click here to register!

Join GY Partner, David Kronenberg, and Associate Attorney, Young Mee Jun, for the third session of our monthly series of webinars designed to help you successfully plan.

Topics will Include:

• Family home and alternative living options
• Various ways to pay for the cost of Long Term Care
• Medicare, Medicaid, and Long Term Care insurance
• Recent changes to law regarding community Medicaid home care

Registration is required. Please call our office at 718-238-6960 and someone will assist you.

Attorney Advertising

Webinar # 3: May 5th at 6 PM EST!

Planning for Long Term Care

Wednesday, May 5th, 2021

6:00 - 7:00 PM EST 

Click here to register!

Join GY Partner, David Kronenberg, and Associate Attorney, Young Mee Jun, for the third session of our monthly series of webinars designed to help you successfully plan.

Topics will Include:

• Family home and alternative living options
• Various ways to pay for the cost of Long Term Care
• Medicare, Medicaid, and Long Term Care insurance
• Recent changes to law regarding community Medicaid home care

Registration is required. Please call our office at 718-238-6960 and someone will assist you.

Attorney Advertising

LEGAL & FINANCIAL SPRING CLEANING WEBINAR!

Legal & Financial Spring Cleaning:

Get your legal house in order using the 5@55 Program

Wednesday, March 10, 2021

 6:00 - 7:00 PM EST

Click here to register!

Join GY Law partners Judith D. Grimaldi & Joanne Seminara for the first of our monthly series of webinars designed to help you successfully plan for the later years.

Learn about Power of Attorneys, Health Care Proxy, Wills, and Trusts. Ask questions and share your ideas!

 

We wrote this book as a simple guide to help you through retirement and life changes.

Registration is required. Please register by clicking this link or call our office at 718-238-6960 and someone will assist you.

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UPDATE: Changes to Medicaid Home Care Eligibility Rules

 New Deadline – MARCH 31, 2021

The 2020 N.Y. State Budget Bill included changes to the Medicaid program covering home and community-based services (Home Care):

• All new applications for Medicaid community-based (home care) benefits filed after March 31, 2021, will be subject to a 30-month (two-and-half-year) lookback period when analyzing an applicant's resources and income.
• If gift transfers are made after February 28, 2021, a transfer penalty or waiting period may be applied before Medicaid covered services can be granted.

The effective date for this new rule is April 1, 2021. All Medicaid home care applications filed after March 31, 2021 will be asked to incrementally provide 30 months of financial statements for all resources. If uncompensated transfers or gifts were made to establish Medicaid eligibility, a waiting period for benefits will be applied in proportion to the amount of the gift and the timing of the gift.

These rules may also affect existing Medicaid home care beneficiaries who participate in pooled income trusts.  Pooled trust recipients in making their monthly transfers to their pooled trust may need to limit the remaining pooled trust balance to Medicaid's current resource amount. ($15, - 2021) combined with their other exempt resources.

Please note that the lookback period for Medicaid nursing home benefits remains unchanged at a full 60 months (5 years).

Look for future mailings on other Medicaid topics as listed below:

1. More Medicaid home care members who have been in a nursing home for 3 or more months will be unenrolled from MLTC plans on April 1st if they were approved for Nursing Home Medicaid

2. NEW “LOCK-IN Rule" Started December 1, 2020 which limit Medicaid home care recipients ability to switch home care agencies after a certain time frames.

3. 2021 Medicaid Income Limits announced. 4.  Medicaid  and  Services Levels  Cannot be Reduced or Stopped During COVID Emergency as per federal and state rules

The Medicaid Team at Grimaldi & Yeung LLP can help you apply for Medicaid home care services before the new March 31, 2021 application deadline. If you need to avoid the new 30 month look back and a possible Medicaid penalty period please contact as soon as possible to develop your Medicaid plan. We can also explain how this rule will impact the continued use of a pooled income trust.

Please call our office anytime for assistance in the Medicaid Planning process at (718) 238-6960 or info@gylawny.com, and we will be happy to schedule an appointment with one of our attorneys. 

 

Follow  Grimaldi & Yeung LLP  on our website www.gylawny.com and  our Facebook page  as we will continue to bring you important news and about elder law, Medicaid, and estate and tax law to ensure you have the latest updates which may impact you and your family, especially in these unsettled times when health care is of vital importance.

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KNOW YOUR RIGHTS FOR VISITATION IN LONG TERM CARE FACILITIES DURING COVID-19

This is a frightening and confusing time for residents of long-term care facilities and their families as New York’s Department of Health has severely restricted visitation in these facilities.  This is a brief guide to visitation rights in long term care facilities for residents, families and advocates.

Visitation Allowed in Long Term Care Facilities When:

• No new COVID-19 cases in the Nursing Home in 14 days

Exceptions: Visitation permitted for cases when there is a pending terminal illness, or “end of life” situations and a determination that “compassionate care” is needed. (Defined below)                    

• There is adequate staffing in the Nursing Home to accommodate the special visit requirements
• There is adequate testing of residents (all residents have been tested)
• Visitors present a negative COVID-19 test within 7 days of the visit and pass screening questions – except for end of life and compassionate care visits
• All visitors and residents wear face masks or face coverings
• Social distancing is maintained (6 feet apart)
• Hand sanitizer is available
• Only two visitors are allowed per resident at any one time
• The number of visitors does not exceed 10% of resident census at any time
• Visitors are over age 18

Visitation when Nursing Homes are in Red Micro-Cluster Zone or Orange Warning Zone

            No visitation when Nursing Home is in a “Red Zone” (defined below) except for:

• Compassionate Care
• End of Life/Hospice
• Medically or clinically necessary (i.e. visitor is essential to the care of the patient)
• Essential companions to individuals with cognitive impairments, including dementia

No visitation in an Orange Zone if:

Staff member or resident in facility has tested COVID-19 in the last 14 days except for:

• Compassionate Care
• End of Life/Hospice
• Medically or clinically necessary
• Necessary legal representatives
• Essential companions to individuals with cognitive impairments, including dementia

Where to Visit?

• Outdoors (weather permitting)
• Indoors if the area is well-ventilated: no more than 10 people visiting the facility, face masks required, and social distance is maintained. However, not in the resident’s room unless the resident is bed-bound, is an end of life case, pediatric case, or the resident is in a dedicated unit.

Virtual Visits

       Facilities are encouraged to provide all available options for virtual family visits! Contact resident’s social work, or recreation staff or designated administrative staff to set up times to FaceTime, Skype, Zoom or have any other form of virtual interaction with your loved one.

What is a Compassionate Care visit?

While not exclusively confined to end-of-life situations, it can and will include visits in imminent end of life situations. For example, a compassionate care visit may be for a resident who is experiencing trauma, such as the death of a family member or friend, a sudden change in environment, and other situations where the mental well-being of a resident requires an in-person visit. Visits under these circumstances must include screenings for COVID-19 symptoms, social distancing, hand hygiene, and both residents and visitors wearing a face covering for the entire visit.

What is a Red, Orange and Yellow Zone?

These are areas demonstrating substantial COVID-19 spread, Red being the highest concentration, then Orange, then Yellow.  You can look up COVID-19 hot spot zones by address here:  https://forward.ny.gov/

Advocacy Tips

Call for Help:

1. Request a meeting with the Director of Recreation and the Administrator of the Nursing Home to discuss access to the resident.
2. If appropriate, request a compassionate care visit(s). If refused, request and arrange a care plan meeting that is attended by an interdisciplinary team consisting of the resident’s social worker, nurse, attending physician, dietician, director of recreation, or director of therapy to establish the benefit of this type of visit.
3. If the Resident’s facility is in a Red or Orange Zone and you believe the visit is medically or clinically necessary (i.e. essential for the care of the patient), request and arrange a meeting with the Resident’s attending physician, social worker, nurse or Administrator to advocate for visitation.
4. Contact the local Ombudsman office for your locality.
5. Register a complaint with the NYS Department of Health’s Nursing Home. Complaint Hotline: 888-201-4563

The Ombudsman Program

            The Ombudsman Program is an effective advocate and resource for older adults and people with disabilities who live in nursing homes, among other settings. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life. https://aging.ny.gov/long-term-care-ombudsman-program. Phone: 855-582-6769

The Future of Visitation

            If the Nursing Home does not satisfy all of the safety conditions or there is an uptick in the number of positive COVID-19 cases called “micro clusters,” such as the declaration of red or orange zones in the local area or other legitimate infection control concerns, visitation may be limited again. On October 23, 2020 an Executive Order established that all congregate care visitations in red zones were suspended.  The Order listed  compassion care  exceptions as above or visits for: medical/clinical necessary care, involving minors, necessary and essential companions for person with intellectual disabilities, and necessary legal representatives. Orange zone rules are more flexible, but if a staff member or resident of a facility has tested positive for COVID in the last 14 days, visitation will be suspended with the same exceptions stated above.

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Grimaldi & Yeung LLP alerts you to the following updated Medicaid Levels for 2021

Community-Based Medicaid-for Home Care, Adult Day Program, Hospital Stay, Outpatient Rehab:

Monthly Income for 1 person: $884*

Monthly Income for 2 people: $1,300*

Resource Level for 1 person household: $15,900

Resource Level for 2 person household: $23,400

Married Couple Monthly Income: $3,259.50

Maximum Community Spouse Resource Allowance: $130,380**

 

Institutional-Based Medicaid-Nursing Home & Hospital Stays:

Individual Monthly Income: $50

Resource Level for Individual: $15,900

Non-Institutional Community Spouse Monthly Income: $3,259.50

Maximum Non-Institutional Community Spouse Resource Allowance: $130,380**

Maximum Home Equity Limit: $906,000

 

NYS Medicaid Regional Rates for average cost of nursing home care to be used in determining transfer penalty period as of 2021:

a. Central $10,857                     

b. Long Island $13,834          

c. New York City $13,037           

d. Northeastern $11,689

e. Northern Metropolitan $13,206

f.  Rochester $13,020

g. Western $11,054

 

Medicare Facts:

a. The Medicare Part B premium deducted from monthly social security benefits. Based on following income levels for new enrollees in the system:

- Up to $88,000                       $148.50***       - $138,000 to $165,000          $386.10

- $88,000 to $111,000            $207.90           - $165,000 to $500,000          $475.20

- $111,000 to $138,000          $297.00           - $500,000 and over               $504.90            

b. Medicare co-payment for Skilled Nursing Facility is $185.50

c. Medicare hospital deductible per benefit period is $1,484.00

 

*Plus a $20 disregard.

**Higher amounts may be kept under the “Spousal Refusal” provisions. 

                                                                                                                                                                                                            Attorney Advertising                                                                                                                                                                                                                        

KNOW YOUR RIGHTS FOR VISITATION IN LONG TERM CARE FACILITIES DURING COVID

This is a frightening and confusing time for residents of long-term care facilities and their families as New York’s Department of Health has severely restricted visitation in these facilities in an attempt to protect residents and staff from further risk of COVID infection. This is a brief guide to visitation rights in long term care facilities for residents, families and advocates.

Visitation Allowed in Long Term Care Facilities When:

• No new COVID cases in the Nursing Home in 14 days
• Exceptions: Visitation permitted for cases when there is a pending terminal illness, or “end of life” situations and a determination that “compassionate care” is needed. (Defined below)                
• There is adequate staffing in the Nursing Home to accommodate the special visit requirements
• There is adequate testing of residents (all residents have been tested)
• Visitors present a negative COVID test within 7 days of the visit and pass screening questions – except for end of life and compassionate care visits
• All visitors and residents wear face masks or face coverings
• Social distancing is maintained (6 feet apart)
• Hand sanitizer is available
• Only two visitors are allowed per resident at any one time
• The number of visitors does not exceed 10% of resident census at any time
• Visitors are over age 18

 

Visitation when Nursing Homes are in Red Micro-Cluster Zone or Orange Warning Zone

               No visitation when Nursing Home is in a “Red Zone” (defined below) except for:

• Compassionate Care
• End of Life/Hospice
• Medically or clinically necessary (i.e. visitor is essential to the care of the patient)
• Essential companions to individuals with cognitive impairments, including dementiaNo visitation in an Orange Zone if:
• Staff member or resident in facility has tested COVID in the last 14 days except for:
•  

• Compassionate Care
• End of Life/Hospice
• Medically or clinically necessary
• Necessary legal representatives
• Essential companions to individuals with cognitive impairments, including dementia

Where to Visit?

• Outdoors (weather permitting)
• Indoors if the area is well-ventilated: no more than 10 people visiting the facility, face masks required, and social distance is maintained. However, not in the resident’s room unless the resident is bed-bound, is an end of life case, pediatric case, or the resident is in a dedicated unit.

Virtual Visits

     Facilities are encouraged to provide all available options for virtual family visits! Contact resident’s social work, or recreation staff or designated administrative staff to set up times to FaceTime, Skype, Zoom or have any other form of virtual interaction with your loved one.

What is a Compassionate Care visit?

While not exclusively confined to end-of-life situations, it can and will include visits in imminent end of life situations. For example, a compassionate care visit may be for a resident who is experiencing trauma, such as the death of a family member or friend, a sudden change in environment, and other situations where the mental well-being of a resident requires an in-person visit. Visits under these circumstances must include screenings for COVID symptoms, social distancing, hand hygiene, and both residents and visitors wearing a face covering for the entire visit.

What is a Red, Orange and Yellow Zone?

These are areas demonstrating substantial COVID spread, Red being the highest concentration, then Orange, then Yellow. You can check your area’s designation here: https://www.governor.ny.gov/news/governor-cuomo-announces-updated-covid-19-micro-cluster-focus-zones-0  

Advocacy Tips

Call for Help:

1. Request a meeting with the Director of Recreation and the Administrator of the Nursing Home to discuss access to the resident.
2. If appropriate, request a compassionate care visit(s). If refused, demand a care plan meeting that is attended by an interdisciplinary team consisting of the resident’s social worker, nurse, attending physician, dietician, director of recreation, or director of therapy to establish the benefit of this type of visit.
3. If the Resident’s facility is in a Red or Orange Zone and you believe the visit is medically or clinically necessary (i.e. essential for the care of the patient), demand a meeting with the Resident’s attending physician, social worker, nurse or Administrator to advocate for visitation.
4. Contact the local Ombudsman office for your locality
5. Register a complaint with the NYS Department of Health’s Nursing Home Complaint Hotline: 888-201-4563

 

The Ombudsman Program

            The Ombudsman Program is an effective advocate and resource for older adults and people with disabilities who live in nursing homes, among other settings. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life. https://aging.ny.gov/long-term-care-ombudsman-program. Phone: 855-582-6769

The Future of Visitation

            If the Nursing Home does not satisfy all of the safety conditions or there is an uptick in the number of positive COVID cases called “micro clusters,” such as the declaration of red or orange zones in the local area or other legitimate infection control concerns, visitation may be limited again. On October 23, 2020 an Executive Order established that all congregate care visitations in red zones were suspended. The Order listed compassion care exceptions as above or visits for: medical/clinical necessary care, involving minors, necessary and essential companions for person with intellectual disabilities, and necessary legal representatives. Orange zone rules are more flexible, but if a staff member or resident of a facility has tested positive for COVID in the last 14 days, visitation will be suspended with the same exceptions stated above. We will remain vigilant in our efforts to advocate for an appropriate balance between the safety of the staff and residents and the mental well-being off all those affected.

Attorney Advertising

KNOW YOUR RIGHTS FOR VISITATION IN LONG TERM CARE FACILITIES DURING COVID

This is a frightening and confusing time for residents of long-term care facilities and their families as New York’s Department of Health has severely restricted visitation in these facilities in an attempt to protect residents and staff from further risk of COVID infection. This is a brief guide to visitation rights in long term care facilities for residents, families and advocates.

Visitation Allowed in Long Term Care Facilities When:

• No new COVID cases in the Nursing Home in 14 days

         - Exceptions: Visitation permitted for cases when there is a pending terminal illness, or “end of life” situations and a determination              that “compassionate care” is needed. (Defined below)                    

• There is adequate staffing in the Nursing Home to accommodate the special visit requirements
• There is adequate testing of residents (all residents have been tested)
• Visitors present a negative COVID test within 7 days of the visit and pass screening questions – except for end of life and compassionate care visits
• All visitors and residents wear face masks or face coverings
• Social distancing is maintained (6 feet apart)
• Hand sanitizer is available
• Only two visitors are allowed per resident at any one time
• The number of visitors does not exceed 10% of resident census at any time
• Visitors are over age 18

Where to Visit?

• Outdoors (weather permitting)
• Indoors if the area is well-ventilated: no more than 10 people visiting the facility, face masks required, and social distance is maintained. However, not in the resident’s room unless the resident is bed-bound, is an end of life case, pediatric case, or the resident is in a dedicated unit.

Virtual Visits

       Facilities are encouraged to provide all available options for virtual family visits! Contact resident’s social work, or recreation staff or designated administrative staff to set up times to FaceTime, Skype, Zoom or have any other form of virtual interaction with your loved one.

What is a Compassionate Care visit?

While not exclusively confined to end-of-life situations, it can and will include visits in imminent end of life situations. For example, a compassionate care visit may be for a resident who is experiencing trauma, such as the death of a family member or friend, a sudden change in environment, and other situations where the mental well-being of a resident requires an in-person visit. Visits under these circumstances must include screenings for COVID symptoms, social distancing, hand hygiene, and both residents and visitors wearing a face covering for the entire visit.

Advocacy Tips

1. Request a compassionate care visit(s). If refused, demand a care plan meeting that is attended by an interdisciplinary team consisting of the resident’s social worker, nurse, attending physician, dietician, director of recreation, or director of therapy to establish the benefit of this type of visit.
2. Call for Help:
   1. Request a meeting with the Director of Recreation and the Administrator of the Nursing Home
   2. Contact the local Ombudsman office for your locality
   3. Register a complaint with the NYS Department of Health’s Nursing Home Complaint Hotline: 888-201-4563

The Ombudsman Program

            The Ombudsman Program is an effective advocate and resource for older adults and people with disabilities who live in nursing homes, among other settings. Ombudsmen help residents understand and exercise their rights to good care in an environment that promotes and protects their dignity and quality of life. https://aging.ny.gov/long-term-care-ombudsman-program. Phone: 855-582-6769

The Future of Visitation

            If the Nursing Home does not satisfy all of the safety conditions or there is an uptick in the number of positive COVID cases called “micro clusters,” such as the declaration of red or orange zones in the local area or other legitimate infection control concerns, visitation may be limited again. On October 23, 2020 an Executive Order established that all congregate care visitations in red zones were suspended.  The Order listed compassion care exceptions as above or visits for: medical/clinical necessary care, involving minors, necessary and essential companions for person with intellectual disabilities, and necessary legal representatives. Orange zone rules are more flexible, but if a staff member or resident of a facility has tested positive for COVID in the last 14 days, visitation will be suspended with the same exceptions stated above. We will remain vigilant in our efforts to advocate for an appropriate balance between the safety of the staff and residents and the mental well-being off all those affected.

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Estate Planning for a Second Marriage and Blended Family

 

“Second (or third or fourth) marriages often require careful balancing between the needs of the surviving spouse and the needs of the children from a previous marriage.”

It takes a certain kind of courage to embark on new marriages after being married previously, even when there are no children from prior marriages. Regardless of how many times you walk down the aisle, the recent article “Establishing assets, goals when planning for a second marriage” from the Times Herald-Record advises couples to take care of the business side of their lives before saying “I do” again.

Full disclosure of each other’s assets, overall estate planning goals and plans for protecting assets from the cost of long-term care should happen before getting married. The discussion may not be easy, but it’s necessary: are they leaving assets to each other, or to children from a prior marriage? What if one wants to leave a substantial portion of their wealth to a charitable organization?

The first step recommended with remarriage is a prenuptial or prenup, a contract that the couple signs before getting married, to clarify what happens if they should divorce and what happens on death. The prenup typically lists all of each spouses’ assets and often a “Waiver of the Right of Election,” meaning they willingly give up any inheritance rights.

If the couple does not wish to have a prenup, they can use a Postnuptial Agreement (postnup). This document has the same intent and provisions as a prenup but is signed after they are legally wed. Over time, spouses may decide to leave assets to each other through trusts, owning assets together or naming each other as beneficiaries on various assets, including life insurance or investment accounts.

Without a pre-or postnup, a portion of the decedent spouse’s assets will go to the surviving spouse upon death with little or possibly nothing going to the children.

The couple should also talk about long-term care costs, which can decimate a family’s finances. Long- term care insurance is the ideal plan. If either of the spouses has not secured this insurance and cannot get a policy, an alternate is to have an elder law attorney create a Medicaid Asset Protection Trust (MAPT). Once assets have been owned by the trust for five years for nursing home benefits and two-and-a-half years transfer period for home care paid by Medicaid, they are protected from long-term care costs.

When applying for Medicaid, the assets of both spouses held during their life time continue to be at risk, regardless of pre- or postnup documents.

Consider the use of trusts in your planning. A will conveys property, but assets must go through probate, which can be costly, time-consuming and leave your assets open to court battles between heirs. Trusts avoid probate, maintain privacy and deflect any disagreements, especially among potential blended family members.

Creating a trust and placing the joint home and any assets, including cash and investments, inside the trust is a common estate planning strategy. When the first spouse dies, a co-trustee who serves with the surviving spouse can prevent the surviving spouse from changing the trust and by doing so, protect the children’s inheritance. Let’s say one of the couple suffers from dementia, remarries or is influenced by others—a new will could leave the children of the deceased spouse with nothing.

Second marriages bring up many sensitive issues which should be addressed. Prior planning with an experienced estate planning attorney can protect the couple and their children and provide peace of mind for all concerned. Contact our firm early on and we can help you start your new marriage on the right path.

Reference: Times Herald-Record (Sep. 21, 2020) “Establishing assets, goals when planning for a second marriage”

Our firm now offers Care Advocacy to service all of our clients' needs with our new social work staff. Please call our office anytime for assistance in your Estate Planning, Long Term Care Planning, Medicaid or Special Needs Planning: (718) 238-6960 or info@gylawny.com. We will be happy to schedule an appointment with one of our attorneys.

Planning for Nursing Home Expenses

“A revocable trust is great for many reasons, but it does NOT protect assets from nursing home expenses.”

The question raised in the article “Fact or Fiction: I Can Protect My Assets from a Nursing Home with a Revocable Trust” from New Hampshire Business Review is frequency asked, and the reason for it is understandable. Any form of long-term home care is costly and can quickly decimate a lifetime of savings. There are ways to protect assets, but a revocable trust is not one of them.

There are some reasons why a person might find a revocable trust attractive. For one thing, if the grantor (the person who creates the trust and is also the trustee (i.e., the person in charge of the trust)), there is no loss of control. It is as if you still own the assets that are in the trust. However, when you die, the assets in the trust don’t go through the probate process. Instead, they go directly to the beneficiaries named in the trust documents. A revocable trust also lets you make specific provisions for beneficiaries and beneficiaries with special needs.

There is a trust that can be used to protect assets from the cost of long-term care. It is the irrevocable trust, which must be properly prepared by an estate planning attorney and done in a timely fashion: five years before the person needs to go to a nursing home.

The difference is in the name: the irrevocable trust is irrevocable. Once it is created, you (the grantor) may not change it. Once an asset is placed in the trust, you don’t own it. The trust is the owner. You can’t change your mind. The grantor may also not serve as the trustee of the trust.

You have to be prepared to give up complete control of the assets that go into the trust.

Some people think simply by handing over their assets in the trust to their children, they’ve solved everything. However, there are problems. If your children are sued or run into debt problems, that lifetime of saving which is now in their control is also subject to creditors or claims. If you need to enter a nursing home within five years of your handing over the assets, you also won’t be eligible for Medicaid.

The best course of action is to meet with an estate planning attorney and discuss your overall estate plan. You should have a frank conversation about your wishes, what kind of a legacy you want to leave behind and your bigger picture for the world after you’ve passed. The attorney will help work out a plan that will protect you, your spouse, your assets and your family.

Remember that an estate plan is not a one-and-done document. Every three or four years, or as “life happens” and changes occur in your life, you should touch base with your attorney. A new family member by marriage, birth or adoption, may call for some changes to your estate plan. It might also be affected by the sadder events of life; death, divorce, or a significant health change. All require a phone call and a discussion to ensure that your estate plan still achieves your goals and protects those you love.

Reference: New Hampshire Business Review (July 30, 2020) “Fact or Fiction: I Can Protect My Assets from a Nursing Home with a Revocable Trust”