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Estate Recovery – Last Gasp or Second Wind

Thursday, January 12, the Michigan Supreme Court is scheduled to hear oral arguments in several combined matters all relating to the issue of Medicaid estate recovery. The main issue in these cases is whether the manner in which the State implemented the estate recovery program gave those Medicaid beneficiaries who were subject to recovery sufficient notice of their rights and responsibilities – i.e. Was it fair? To read the briefs that have been filed in this matter, click here and follow the links.

This hearing is the culmination of years of litigation in local courts throughout Michigan, followed by several of those cases being appealed to the Michigan Court of Appeals.   While many local judges ruled in favor of the elder law attorneys who fought these cases, to date, as readers of this blogsite know, the appellate courts have not been nearly as friendly.  But those have all been COA cases. Perhaps the MSC will be kinder.

The State Bar Elder Law and Disability Rights Section has funded the Appellant’s case. They’ve invested a lot and have a quality product to show for it.  But one wonders what they expect to come of it.  While it’s possible the MSC could decide that every case in which the State has collected money under the estate recovery program was defective and the money should be refunded, that seems highly unlikely.  At best, perhaps, relief for the named plaintiffs and some instruction to the State to do better in the future. At worst, a stamp of approval on the process as it was followed.

In any event, one can’t knock the advocates for pushing back. The implementation of estate recovery in Michigan has been a long and curious process.

And in other news: dower is dead. The lame duck session of the Michigan legislature passed laws abolishing this relic of the common law.  No surprise here.  To read more on dower, click here.

Nothing New: DCH Wins Again

The Court of Appeals has issued yet another published opinion re Michigan’s Medicaid Estate Recovery Program.  Click here to read In Re Estate of Catherine Klein.  The case repeats the factual circumstances of prior estate recovery cases – and the result, not surprisingly, is the same.  Hard to understand why this opinion is published – but estate recovery ophites may choose to read it.

New Medicaid Policy on VA Income

Understanding the way Medicaid programs treat income-like benefits paid by the Veterans Administration have always been confusing (at least to me). Until now, Medicaid policy on the subject was sparse.  Good news, as of April 1, we have a lot more detail.  Bad news, I still don’t understand.

It’s important because people who can combine VA benefits (especially Aid and Attendance) with Medicaid Waiver or PACE benefits, have more options. And it comes up a lot.  But it’s dicey because if a client accesses VA benefits and by doing so receives income that puts them even one dollar over the income cap, they lose the ability to obtain benefits through either Waiver or PACE.

At least part of the confusion stems from the fact that the checks a Veteran (or their spouse) receives from the VA typically represent a composite of pensions and supplemental payments (or as Medicaid calls them “allowances”). The challenge is determining how much, if any, of a check they receive is going to be considered income when applying for Medicaid benefits. (Veterans who were injured in service receive “compensation.”  Compensation is clearly income, and is not the subject of this blog post.)

As of April 1, DHHS issued expanded language in BEM 503 (click here to read the bulletin). The BEM now says:

Bridges counts the gross amount of the pension or compensation as unearned income.

Exceptions:

  • Bridges excludes any portion of a payment resulting from an Aid and Attendance or Housebound allowance; see VA Aid and Attendance and Housebound Allowances in this item.
  • Bridges may exclude augmented benefits; see Augmented Benefits in this item.

Bridges excludes any portion of a payment resulting from unusual medical expenses; see VA Adjustment for Unusual Medical Expenses in this item.

So it clearly says they will exclude “any portion resulting from unusual medical expenses” and “any portion of the payment resulting from Aid and Attendance or Housebound Allowance.”  (emphasis added).

Then it says:

Payments are made to veterans, spouses of disabled veterans, and surviving spouses who are:

      •  Housebound.

      •  In regular need of the aid and attendance of another individual.The payment is included with the pension or compensation payment.Bridges excludes as income and as an asset the portion of a VA pension or compensation that is the aid and attendance or house-bound allowance.

Again “excluded,” but again, that annoying word “portion.”

And it says:

VA increases some pension and compensation payments due to unusual medical expenses.

Bridges excludes the increase due to unusual medical expenses as income and as an asset.

OK, so we have an “Aid and Attendance benefit” and a “housebound benefits.” Both excluded. Likewise, increases resulting from unusual medical expenses are excluded.  But we are told that these payments may only represent aportion of the payment that Veteran or his/her spouse receives, and that it is only this “portion” that is excluded.  So naively, I ask: What portion? How do we calculate it?  How do we prove what it is?

Well, policy says:

These allowances are not identifiable on a check stub or award letter. Accept the client’s statement that the payment does not include any of these additional allowances.

But I’m not asking about how to prove that the payment does not include an excluded “allowance.” I want to show that it does include an allowance, and I want it to be excluded.  Although the VA will, upon request, provide a written explanation of benefits, the process for obtaining that information is slow, unreliable, and often incomplete; especially with respect to unusual medical expenses.

There’s more – and you can read it yourself. I know I can be dense.  So I asked some of the smartest people I know (Thanks Amy and David), yet I remain uncertain.

I believe the changes were intended to make things better. After all, the State clearly understands that every Federal dollar they capture from the Veterans Administration is one less dollar they have to spend; and that forcing people who would otherwise be getting Waiver or PACE services into nursing homes because they went over the income cap doesn’t help anyone.

I don’t like posting information that doesn’t provide guidance – but thought: (1) some of you might not be aware of the changes, and (2) maybe it will make more sense to you. If so, please feel free to drop me a line.

What we learned about hogs and pigs from the SBO experience

On the topic of Medicaid planning, John Bos used to famously comment at ICLE programs that “pigs get fat and hogs get slaughtered.”  The idea was that in engaging Medicaid planning strategies, those who pushed the envelope too far, were going to get hammered.  The Department, in those yesteryears, the phrase implied, would only be pushed so far and those who pushed beyond that point did so that their own risk and the risk of their clients.  To some extent this concept is similar to the old legal adage:  bad facts make bad law.

I have heard two stories about how the attack on SBO trusts came about.  I heard one story that the topic came up at a cocktail party and someone with knowledge described to someone of authority at the State a particular case in which and SBO trust was used to shelter millions of dollars.  Another story I heard is that a State formed panel which did a comprehensive review of the SBO issue and calculated the total amount of assets placed in SBO trusts during a single year, and came up with an astounding figure.  I don’t know which, either or if both are true.

Both stories suggest the same thing, either an individual practitioner or the body of planners as a group, pushed the state too far and they reacted.

In discussing the evolution of the SBO situation with a friend and colleague of many years, he said: These days it’s more like “pigs get fat and hogs slaughter all of us.”  His comment gave me pause.

The truth is that there are so many more attorneys planning today, and the Department, and its representatives in the Attorney General’s Office, is/are so much more aware of what we are doing than was the case in years past.  John’s familiar phrase lingers on, and reminds us of the risks we take when we push the envelope.  But it is also true that things we do as a group can no longer slip through the cracks in the process.  In years past, many fewer attorneys were offering advice on this topic, and only a small percentage of Medicaid applicants were taking advantage of planning strategies.   The playing field has changed. Today, when a “good idea” emerges, it is almost immediately implemented by practitioners in hundreds or thousands of cases, and the combined impact of those efforts will sooner or later become an issue in the minds of those who see their role as protecting the public resources.  Without arguing which side wears the white hat, it is interesting that this evolution has occurred.

Hilldale Estate Recovery Case Report

Same result as the previously reported Genesee County case – the recovery can be made after the redetermination application is signed. In fact the Hillsdale Court adopts the reasoning of the Genesee County Judge.    In this case that’s a good result – the beneficiary died less than two months later.  In other cases, the result may not be as favorable.  The issue of whether notice is required at the time of initial application or can be cured in a subsequent redetermination application seems to be trending in favor of the latter (that it can be cured).   To read the opinion click here.

Striking the Balance of Financial Integrity and Quality of Care for the Spouse of an Impaired Adult

Here’s another balance that’s hard to strike – and hard to help clients understand and decide.
Typical example: Husband and wife have been married 50 years.  They are both in their seventies.  They have a nice nest egg, but are hardly rich.  Let’s say their home is paid off, and is worth $150,000.  In addition they have another $250,000 in investments, bank accounts and retirement funds.
Now husband gets dementia. Wife takes care of him at home as long as she can.  Children might help toward the end of the effort, and she may start hiring caregivers for a few hours a day.  But as her husband’s care needs increase she realizes that the costs of the care-giving combined with the usual costs of life are depleting their savings at an alarming rate.
The wife investigates private pay care facilities and learns that the assisted living facility that is closest to her home and that she believes would provide her husband with the highest quality of care would cost $5,000 per month.
The wife seeks advice and learns that if she puts her husband in a Medicaid nursing home, all of the marital funds can be protected for her needs and he can qualify for Medicaid.  It might even be possible to protect most or all of the husband’s income for her expenses.  The decision she faces is when to pull the trigger and place their spouse in a Medicaid nursing home?  How much of the marital pot can the healthy spouse afford to spend before compromising her own long term financial integrity?  If she is in her mid-seventies and relatively healthy, she should consider the real possibility that she may live another twenty or thirty years –and in the long run the amount of money she retains through this process will directly impact her quality of life, and quality of care choices that she will have as she becomes more frail.
Other options, like community based Medicaid services through the MI Choice program or in some parts of the state the PACE program, may provide options that will allow the impaired spouse to remain in the home longer, even indefinitely, by providing additional assistance with care-giving at no cost.  Veterans benefits may also be available.  But in many cases these options may not be available or may be too little. 
The reality is that our current healthcare system commonly puts a spouse of an impaired adult in the position of striking the difficult balance between the quality of care that the ill-spouse will receive and his or her own long term financial integrity-  a difficult and emotional decision to have to make for sure.

Local Courts Hold Ground in Medicaid Cases

The bad news is that the Attorney General is actively shopping around for Medicaid cases to attack.  The good news is that local probate judges are – so far – holding the line.

Over the past few months, at least two cases have been decided in probate courts that involve Medicaid long term care issues.

One case, the Estate of Amy Grosskopf, related to an estate recovery claim and was decided in Gratiot County.

The other case, the matter of Emma J. Molesworth, a protective proceeding to increase the protected spousal amount, was heard in Shiawassee County.

The Opinion in the Grosskopf case is attached here:  Grosskopf Opinion.

The Transcript of the decision in the Molesworth case is attached here:  Molesworth Transcript.

Grosskopf is important because it builds on the Salemka-Shire case discussed in posts in this blog below.  In Salemka-Shire, the Clinton County Probate Court held that the failure to give notice of an estate recovery claim at the time the person began seeking Medicaid precludes the estate recovery claim entirely.  Grosskopf clarifies that this defect cannot be cured by subsequent applications filed in the redetermination process, even if those subsequent applications include estate recovery notices. 

Molesworth was a Petition for Protective Order to increase the protected spousal amount for a married couple seeking Medicaid assistance in a nursing home.  The Petition was actively opposed by the State.  The Probate Court held that the relief was appropriate, and in doing so expressly refuted the State’s claim that such proceedings are not in the best interests of the protected persons, or that they are a function of an inappropriate “loophole” in the law.

Over the past few months I have discussed several cases with colleagues in which the attorney general’s office is pushing the enveloped in challenging issues relating to Medicaid eligibility and estate recovery matters.  Congrats to the attorneys involved in these two cases for their superb advocacy: the Lansing law firm of Fraser Trebilcock in the Grosskopf case and Attorney Rebecca McClear in the Molesworth matter.

An Inconvenient Obstacle to Community Based LTC

Summary

Because asset protection strategies commonly used in the context of nursing home Medicaid are problematic in the context of MI Choice Waiver and PACE programs, a significant number of potential beneficiaries are disincentivized from pursuing these services.

Background

PACE is the Program for All Inclusive Care that is operating in several parts of the State.  It is a unique and growing concept for long term care (“LTC”) that combines Medicare and Medicaid dollars for individuals who meet the Medicaid Level of Care requirements for long term care services.  In that combines Medicare and Medicaid money, PACE is especially interesting as it may anticipate something like what will come (if anything) from the current push for “integrated care” services.

Waiver or “MI Choice” is the home and community based Medicaid long term care benefit that provides benefits to Medicaid beneficiaries who meet the Medicaid Level of Care requirements for LTC services.  Services may be provided in the home or in those Assisted Living Facilities that participate in the program.

Both PACE and Waiver use the traditional Medicaid financial eligibility rules for nursing home Medicaid, but with an income cap.

Currently most PACE programs are looking to fill slots, whereas most Waiver programs are backlogged (but catching up).

Lawyers have long worked to qualify Medicaid beneficiaries in nursing homes while preserving assets for the spouse or other family members.  This practice area has grown dramatically in the past decade so that whereas a decade ago only a hand full of attorneys provided this type of advice and only a small percentage of nursing home residents took advantage of these asset protection strategies, today there are hundreds of lawyers in Michigan offering advice in this practice area and the majority of nursing home Medicaid beneficiaries receive advice on these strategies.

The Issue

Because the rules that allow for asset protection strategies for residents of Medicaid nursing homes are unclear in terms of how they apply to beneficiaries seeking PACE and Waiver services, a significant number of people seeking Medicaid funded LTC services are being, and will continue to be. disincentivized from pursuing PACE and Waiver services until these issues are resolved.  There are two specific areas of concern: (1) Spousal Protections and (2) Divestment.

Spousal Protections

LTC Medicaid policy provides for a so-called “protected spousal amount;” that is an amount of “countable assets” that the so-called “community spouse” (spouse not in the nursing home) gets to keep in addition to the $2,000 that the nursing home resident can keep.  The protected spousal amount is established by looking at the couple’s assets on the “snapshot date” (another term of art) and applying a formula provided by policy.  In PACE and Waiver programs it becomes difficult to establish a snapshot date, and therefore to take steps necessary to exercise strategies available to maximize the protection of assets for the community spouse.  For married couples these protections can be quite generous.  Although Medicaid policy provides a process for establishing a snapshot date in community based programs, most PACE providers and Waiver agents are unfamiliar with the importance of this process and the result is insecurity for the community spouse when pursuing these benefits.

Divestment

“Divestment” is the policy that penalizes asset transfers for people who give away assets before applying for Medicaid benefits in LTC during the five years prior to applying for benefits (the so-called “lookback period”).  Notwithstanding the policy people do give away assets, either because they do not know the consequences, because they think they should notwithstanding the consequences, or because they have been provided advice on how to do so and preserve assets by using the policy to their advantage.  A key component to fixing inadvertent or ill-advised conduct and for using strategies that allow for transfers notwithstanding divestment policy is the ability to trigger the running of the penalty period of ineligibility that arises as a result of the transfer, and further to provide income to pay for care while the penalty period of ineligibility is running.  Policy for PACE and Waiver services provides no clear direction as to how these two important features of divestment rules apply in this context.  Again, for individuals seeking benefits where divestment is an issue, the lack of ability to fix divestment problems and use the rules to protect assets serves as a disincentive to pursuing these benefits.

Conclusion

These obstacles are fixable if PACE and Waiver providers are willing to work with planners, and apply the rules in a manner that allows families to exercise the same options that are now commonly exercised in the nursing home situation.  Until then, these issues will remain disincentives to those who seek these services.

Plan to be 100

These days, living to be 100 years-old is not unusual.  But most people (at least most of my clients) don’t necessarily want to think about what that means from a planning perspective.  As their advisor, I share these thoughts:

Hang On To Your Assets

As people age they often become more generous and more concerned about “protecting their assets.”  Both of these concerns can give rise to an impulse to transfer some of their resources to subsequent generations.  I discourage this impulse.

As people age, they also often need assistance with their care.  That care is expensive.  If you want to have choices about the quality of care you receive in your declining years, hold on to what you have.  Unless you have substantial wealth (multi-millions of dollars in reserve), anything you do now that reduces your resources is likely to have significant implications on your quality of care when you get older.

Further, the government safety net programs that currently provide older Americans with a base income (Social Security) and health care coverage (Medicare and Medicaid) are all unsustainable.  Whether we even have these programs in 20 years is purely speculative, let alone what they will pay for.  Today’s Medicaid funded nursing homes, as undesirable as they may be, will likely be castles compared to what the government will provide in the future.  Don’t rely on those benefits for your quality of life.

In the end, my advice on this point can be summarized as follows:  your resources are for your needs first.  The future is uncertain.  The kids can have what’s, if anything, left when you’re gone.

Plan for Incapacity

Although not everyone who lives to a ripe old age will become incompetent, many will.  The Alzheimer’s Association estimates that half of people aged 80 have some level of cognitive impairment.

When clients talk about estate planning, they focus first on what happens to their property when they die.  At least as important is the question of: who will make decisions for me if I am alive, but unable to make decisions for myself?

Having well-drafted power of attorneys (medical and financial) is a key to good planning.  That means that the documents not only express your wishes and sufficiently enable your agents to act, but that the people you select to make these decisions for you are the right people to handle these matters.  There is as much litigation these days over control of people and their assets while they are alive and demented, as is there is about their estates after they have passed.  Many of these cases arise because the planning that was done was inadequate or the people selected to make decisions were not well considered.

Watch Out for Greedy Kids

A related concern is that while many older people have saved and accumulated some assets, their children have not necessarily been so prudent.  The dynamic of children having an expectancy in their parents’ estates drives a lot of what we now call “financial exploitation of vulnerable adults.”  As harsh as it sounds, I encourage clients to recognize that children, especially children who, for whatever reason, have failed to establish a sound financial base, may become overly and/or inappropriately concerned that if their parents live a long life, their expectancy in the estate of those parents may be at risk.

Create estate plans where people who are financially stable and/or who have no expectation in a distribution from your estate are in control of decisions about how to spend your assets in the event you do live a long life, but lose the ability to manage those affairs on your own.

Imagine Your Children in Old Age

We all picture our children as youthful.  But one of the quirky realities of living to be 100 is that you have children who are in their 70’s when you die.  Leaving estates to 70 year-olds has implications that most people simply don’t contemplate.  Estate plans should consider this possibility.  It may mean that as one generation reaches a set age, that generation is skipped, and assets instead pass to grandchildren or great-grandchildren.  Or it may mean that the Trustee or executor of your estate has the ability to decide whether or not to make distributions to people of an advanced age based on their health and financial need.

Expect Another Relationship (or two)

Living to an advanced age may mean you outlive your spouse, perhaps by decades.  Loneliness is not required or even healthy.  This means that a subsequent important relationship may develop in your later years.

Pre-nuptial agreements are critical for second marriages, especially second marriages for people of advanced years who enter into marriages with established separate estates.  Not only because they protect against invasion in the event of divorce (which is more common in second marriages than first), but more importantly they limit the rights of a “surviving spouse” to the assets that pass at death by will or trust.  That doesn’t mean you can’t provide for a second spouse if you choose to, it just means that the decision about what and how much to provide can be defined by you in your documents and not by laws that were written without contemplating this situation.

Have A Death Wish

Finally, an edgy topic to consider:

Today, assisted suicide is illegal is most States.  However, the trend appears to be toward allowing people who get to the point where their quality of life is such that they would rather not be alive, to have the ability to opt out.

If that trend continues, assisted suicide may be broadly accepted within the next twenty years.  Accordingly, in anticipating a long life, it is probably worth thinking about (and perhaps even providing a written expression) what degrees of indignities you would choose to suffer before having your life artificially terminated.

Conclusion

The good news is that we are living longer, and that if you have reached the age of 70 or 80 in relatively good health, there is a reasonable possibility that you may see your 100th birthday.  The bad news is that living to 100 involves legal and financial considerations that are not always obvious or comfortable to think about.

Ladybird Deeds and Low Hanging Fruit

Nearly two years ago, Michigan began implementing a Medicaid Estate Recovery Program.  “Estate recovery” means that people who receive Medicaid assistance in the nursing home, through the MI Choice or PACE programs, face the prospect that when they die the State could come back against their estates and seek repayment for the costs paid by the State for their care.

Curiously, Michigan was the last state in the nation to implement an estate recovery program. The laws that were implemented in 2011 were actually passed in 2007.  In 2007, those laws were intentionally written too lenient.  That is, Michigan lawmakers intended to adopt an estate recovery program that would be relatively easy to circumvent.  The part of the law that made Michigan’s program particularly lenient was the part of the law that provided that estate recovery could only be imposed against “probate assets.”

The term “probate assets” refers to assets that pass through the probate administration process.  To explain what “probate assets” are, it is easiest to describe the arrangements that cause assets to pass at death through non-probate means.  These include: through trust, by beneficiary or “transfer on death” designations, by joint ownership, and by life estate.  Assets that pass at death by any of these arrangements would not be probate assets and not be subject to estate recovery under Michigan’s current estate recovery law.

Michigan’s estate recovery law also excluded people who began receiving Medicaid assistance prior to September 30, 2007 (the day the law was passed), and provided that estate recovery would only be applied to Medicaid recipients who received written notice of the program when they first applied for benefits.

Starting and Dropping Cases

Shortly after Governor Snyder took office in January 2011, efforts by the State to finally implement the estate recovery program began in earnest.  Among other things, the State contracted with a company, Health Management Systems, Inc. (“HMS”), a company which operated the estate recovery programs for several other states.  Under the terms of the contract, HMS would operate Michigan’s estate recovery program and would receive a percentage of all funds collected.

In the summer of 2011, family members of Medicaid beneficiaries began receiving notices and questionnaires following the death of the Medicaid beneficiary, which documents were designed to allow them to determine whether they had grounds to pursue collections.

Initially, HMS and the Michigan Attorney General’s office aggressively pursued collections in several matters.  Ultimately, in a proceeding in which the Medicaid beneficiary’s family was represented by Chalgian and Tripp Law Offices, a case was heard and decided in Clinton County regarding one of the central issues in many of these lawsuits.  The issue was whether the State could collect against an estate of a person who began receiving assistance at a time prior to when Michigan was giving written notice of the estate recovery program.  The Judge ruled against the State and HMS in that matter, finding that because no written notice was given at the time the Medicaid beneficiary first applied for services, the State had no right to collect.

Over time this decision caused the State to dismiss several other outstanding cases, and it appears that now all cases involving Medicaid beneficiaries who began receiving assistance prior to the fall of 2011 have been dropped or settled.

For people entering the Medicaid long term care system after approximately November 2011, written notice has been provided to them regarding estate recovery, and this important defense is no longer viable.

Ladybird Deeds

Because the only asset that people who receive Medicaid typically own when they die is their house, early on in the process (back in 2007 when the law was passed) it became clear to attorneys practicing in this area that one way to avoid probate, and thereby estate recovery, which would not run afoul of other Medicaid eligibility rules, was the use of a so-called “ladybird deed”.

Low Hanging Fruit and the Future

So what we have today is a lenient estate recovery program that can be circumvented in most cases through appropriate planning, which often includes a “ladybird deed” – at least for single people on Medicaid.  While some at the State and HMS may be frustrated that they aren’t collecting what they hoped to collect through this program, the fact is that the law was written to allow for people to avoid the reach of estate recovery and that is what is happening.  As a result, to the extent the State is collecting anything through this program, it is from people who have no heirs and/or who failed to plan appropriately (i.e., the “low hanging fruit”).

Of course, there are some in the State and HMS who would like to change the law so that Michigan no longer has a lenient program and so that arrangements, like ladybird deeds, would not allow the Medicaid beneficiary to avoid estate recovery.  There seems to be a reasonable likelihood that such a law could be passed in the future.  Accordingly, people who have family members on Medicaid should pay careful attention to any changes in these laws and should not assume that a ladybird deed will necessarily protect their home if such changes occur.

The Fear Factor

The biggest issue with current estate recovery program is not that people who receive Medicaid assistance are required to repay the State for their care costs, because, as discussed above, that isn’t really happening.  Rather, the big concern about estate recovery is that it is  scary and confusing.  As a result, people who do not need to be in nursing homes, and who haven’t applied for Medicaid, are doing foolish things with their assets believing that if they don’t take these steps, they may lose their homes.

Making matters worse are the ever-present senior seminar scam programs which have jumped on the “estate recovery” development as a new opportunity to scare seniors into buying legal and financial products they don’t need and which, in most cases, are contrary to their best interests (most commonly annuities, and “living” or irrevocable trusts).  The world of long term care, Medicaid, and now even Veterans benefits, has become a hotbed for these bad actors.

As a result, the real damage of estate recovery is not so much the program itself, but the fear it creates in the aging community, and particularly the fact that it makes senior citizens vulnerable to making very bad decisions about their resources. Further, ladybird deeds themselves are at best an imperfect mechanism for most traditional estate planning situations, and should usually not be created where someone is not already in a nursing home or on the MI Choice or PACE programs.

In conclusion, only people who are, or who have a loved one who is, seeking Medicaid assistance in a nursing home, or through MI Choice or PACE, should worry about the Michigan estate recovery program.  If in fact they do need Medicaid assistance through these programs, there are standard approaches that can protect their assets under current law.  Seniors should avoid falling prey to “educational” sales seminars that seek to create fear about the topic. When advice is needed they should consult with an attorney who specializes in this practice area.