Real Estate FAQ
Provides the home buyer the opportunity to inspect any potential issues and assess if they want to take the risk.
The contract terms will outline when you can move in after closing, however in most cases it will be immediately after the closing appointment. You will receive the keys and head straight to your new home.
A warranty deed provides an assurance to the buyer that the seller has good and clear title to the property. A quitclaim deed, on the other hand, makes no such assurances. A quitclaim deed is a deed that transfers the property without guarantees to the title and it merely states that the guarantor/ seller is only transferring their ownership rights.
Searches for property listings that fit your needs, accompany clients to property site, discuss conditions of sale and home, and draw up real estate contracts. They are your advocates.
The buyer, seller etc. along with their respective agents and closing attorney meet to finalize the property transaction. Documents are reviewed and signed, including but not limited to the Deed and closing statement, closing costs are settled, and the ownership of the property is officially transferred from the seller to the buyer, keys to property are officially handed over to the new buyer.
Estate Planning FAQ
A person’s Estate is made of anything they own or are entitled to. This includes real and personal property, bank accounts, retirement accounts, investment accounts, life insurance policies, etc. The estate planning process involves taking an inventory of your assets and discussing asset protection and distribution options for your chosen beneficiaries. It also includes making decisions regarding your care and who will assist you with things should you become incapacitated in the future. The documents included in an estate plan generally include a Last Will and Testament, a Trust, financial and medical Powers of Attorney, Guardianship Designations, End of Life Wishes, and Final Disposition Instructions.
Choosing between a Will and a Trust depends on various factors and personal preferences. A Last Will and Testament take effect after your passing. This document is filed in the Probate Court in the City/Town that you resided in upon your passing. Probate is established if you pass away owning assets in your name alone without a living joint owner or a living beneficiary. Trusts are typically established and take effect during your lifetime. If properly funded a Trust will avoid Probate for your assets. Trusts can help minimize estate taxes, as well as provide creditor sheltering benefits for your beneficiaries. When deciding between the two, an attorney will assist in assessing your property, investments, pensions, and other assets to determine which option best aligns with your priorities.
When someone dies without a will, they are called “intestate”, and the government, through the Court, will handle the distribution of their assets through statutes that determine which relatives inherit a person’s property. Depending on whom you wish to inherit your belongings, the state statutes could elect someone who you no longer have a relationship with to receive your inheritance. If you have minor children, the Court will also decide who should take care of them as a Guardian. The only way to ensure your assets are distributed according to your wishes and that your minor children are in the hands of your selected Guardian is to plan your estate in advance.
It's usually advised to have a will, a healthcare power of attorney, and a financial power of attorney. While these documents offer good coverage in many cases, every situation is different. To ensure your estate is properly protected and tailored to your specific needs and assets, it's best to talk to an estate planning lawyer.
Elder Care Law FAQ
Medicare is a federal health insurance program for people 65 and older, and some younger people with disabilities. Medicare often covers the cost for doctors and hospitalizations, as well as other medical expenses. Medicare also covers skilled rehabilitation care at a nursing home. It does not, however, cover the long-term cost of care at a nursing home after a rehabilitation (skilled care) period has ended. That is where Medicaid comes in. Medicaid, which has strict income and asset limits for eligibility, is one way to cover the cost of long-term care in a nursing home.
Skilled care in a nursing home involves rehabilitation and is generally when a person is receiving physical or occupational therapy. This is a period of time when a person is continuing to recover after an illness, injury, or surgery. Medicare will cover at least a portion of the cost of skilled care.
Unskilled care comes into play once the period of skilled care is over, and a person cannot or chooses not to return home or to the community. Rehabilitation and therapy services are no longer provided, and the person is assumed to be a long-term care patient at that time. Medicare does not cover the cost of unskilled care, and individuals often look to Medicaid to assist with covering the cost of unskilled care.
A Medicaid spend down refers to the process of reducing one's assets to qualify for Medicaid coverage. This typically involves spending or reallocating assets to meet Medicaid's asset and income eligibility criteria. It's a strategy often employed by individuals needing long-term care but whose assets exceed Medicaid's limits. Proper planning and guidance from a qualified elder law attorney can help navigate this process effectively. The process generally involves the attorney analyzing a client’s assets and income and putting together an asset protection plan to maximize the savings of income and assets while obtaining Medicaid eligibility at the earliest possible date.
If you are a married couple with one spouse institutionalized, your Attorney can assist in protecting and preserving a majority, if not all, of your available assets. If you are a single individual or if both married spouses are institutionalized, your Attorney can assist in protecting and preserving approximately one-half of your available assets. Your attorney can assist you with the best way to do this to meet your personal income and asset situation and your medical needs.
If you have an adult disabled child, or an adult child who has lived with you for at least two years prior to needing to enter a nursing home, we may also be able to save assets for those individuals.
For purposes of long-term care and Medicaid, the Community Spouse is the spouse who is still living in the community. The spouse who is in the nursing home is called the institutionalized spouse.
The CSRA is the amount of money a community spouse is entitled to keep when their spouse is applying for Medicaid.
In 2024, in Rhode Island, the CSRA allows the community spouse (the non-applicant spouse) to retain 50% of the couple's assets, up to a maximum of $154,140. If the community spouse’s portion of the assets falls under $30,828, 100% of the assets up to $30,828 can be retained by the non-applicant. Any assets beyond these amounts are what is often included in Medicaid Asset Protection Planning in order to preserve additional assets.
In order to be eligible for Medicaid in a nursing home, in 2024 an applicant’s income cannot equal or exceed $10,190.
The Patient Share is the amount a Medicaid applicant and recipient must pay to the nursing home towards their cost of care. If the person is determined to be eligible for Medicaid, then Medicaid will cover the difference in their cost of care after the application of the patient share towards the monthly cost of care.
Even when you are found to be eligible for Medicaid, you will need to pay a portion of your income to the nursing home each month. This is known as the Patient Share. The Patient Share is calculated by taking your gross monthly income, minus your health insurance premiums (Medicare as well as private supplemental insurance), minus a personal needs allowance ($75.00 in 2024). If you are married and have a community spouse, they may be eligible to keep a portion of your income as well, depending upon their own income and certain housing expenses. The remainder after these allowable deductions is called the Patient Share and this is what is paid to the nursing home each month. Medicaid then pays the rest of the monthly nursing home cost of care.
While one’s home is generally an exempt asset when it comes to qualifying for Medicaid, it is not exempt from Medicaid’s Estate Recovery Program. Following a long-term care Medicaid beneficiary’s death, Rhode Island’s Medicaid agency attempts to collect reimbursement of care costs paid by Medicaid through the deceased person’s estate. This is often the home. Without proper planning strategies in place, the home could be required to be used to reimburse Medicaid for providing care rather than going to family as an inheritance. However, with proper planning, the home may be able to be preserved.
A caregiver agreement, also known as a personal care contract or family caregiver contract, is a legal document that outlines the terms and conditions for compensating a family member or another individual for providing care to an elderly or disabled person. These agreements formalize the caregiver's responsibilities, the compensation they'll receive, and other pertinent details, ensuring transparency and clarity in caregiving arrangements. Utilizing a caregiver agreement can help protect both the caregiver and the care recipient's interests, while also potentially preserving assets for future care needs.
There are several ways to transfer assets while preserving Medicaid eligibility. One is by doing the transfer outside of the five-year look back period. Another is through the child caregiver or adult disabled child exemption. The child caregiver exemption allows transfer of the primary residence of a Medicaid applicant to an adult child who can prove they have been in the home and shows that he or she served as a primary caregiver for the Medicaid applicant for a period of at least two years immediately prior to the need for long term care.
In Rhode Island, if you qualify for Medicaid and you are living in an Assisted Living facility that has Medicaid beds available, the Assisted Living may assist you in obtaining a Medicaid Waiver to assist in covering your cost of care. However, Assisted Living facilities in Rhode Island are not required to accept Medicaid, and most require a certain period of residency on a private pay basis before accepting a Medicaid Waiver.
It is not recommended that you cancel your other health insurance policies. Medicaid will pay for the patient’s cost of care at the nursing home. However, LTSS Medicaid will not cover the cost of outside doctors and hospitalizations.
Health insurance premiums are an allowable expense that can be deducted from income before the monthly patient share due to the nursing home is determined. If you cancel your additional health insurance, that premium amount will be due to the nursing home each month.
It is a good idea to review your supplemental insurance policies on a regular basis with an insurance and Medicare specialist.
Guardianship FAQ
A Guardianship is a court-ordered relationship between a competent adult (the Guardian) and an adult with impaired decision-making capacity (the Ward). In Rhode Island, city and town Probate Courts oversee the Guardianship process and issue such orders. Once a court appoints a Guardian, the Guardian steps into the shoes of the Ward as the primary decision maker. The Guardian of the person may make medical decisions, oversee the residential placement of their Ward (with court approval), ensure that the Ward receives proper professional services, and release medical records and information.
Administering the Guardianship estate is an essential and important process. As the personal representative, you are responsible for acting in the best interest of the Ward. Examples of these responsibilities can include:
- Assuring that the Ward’s basic needs for food, clothing, and shelter are met;
- Keeping the Ward’s assets separate from your own assets;
- Deciding on the Ward’s long-term or short-term residence;
- Determining the kind of medical care to be provided to the ward;
- Managing the Ward’s financial affairs including expenditures to be made on behalf of the Ward;
A Guardian must remit to the probate court, annually, his or her account of the Ward’s assets pursuant to Rhode Island General Laws Section 33-15-26. You will need to maintain detailed records of all transactions of the Ward, including transactions into and out of their accounts. It is often helpful to create an Excel spreadsheet to keep track of Ward’s assets, expenses, debts, and any necessary reimbursements.
If real estate belonging to the Ward is to be sold, the Guardian may enter a listing agreement with a licensed realtor and execute a purchase and sales agreement only after the Certificate of Appointment is received from the Court. Court approval must be sought after a Purchase and Sales Agreement is signed, and before the closing can occur.
Seeking court approval involves filing a Petition for Sale of Real Estate, which will be assigned to a hearing date, alongside an appraisal of such real estate. All required heirs must receive notice of the hearing. After the real estate sale is completed, the proceeds of the sale must be deposited into the Ward’s bank account.
Life Care Planning FAQ
An Elder Care Coordinator, or ECC, working in conjunction with Life Care Planning clients of McCarthy. The ECC is responsible for helping clients and the families that care for them find, get, and pay for good care and community resources. The good care can be provided in any setting that client prefers whether it be in their home or at a care community.
The main difference is that the Elder Care Coordinator is part of a team that provides legal, financial and health support as a person ages. A care navigator, although an important service, is only working to solve one piece of a person’s aging needs.
After the initial meeting with the Life Care Planning attorney, the ECC will schedule a time to meet with you and any family members involved in your care in your home. During that visit, the ECC will assess any areas of concern, including meal prep and planning, bathing, and dressing. In addition, McCarthy Law has partnered with Oakley Home Access to perform a free home safety assessment in addition to the ECC visit.
Probate FAQ
Probate is the legal process of administering a person's estate after they pass, which includes validating the Last Will and Testament, paying debts, taxes and distributing assets. Probate occurs for assets that are in a Decedent’s name alone without a living beneficiary or a living joint owner.
An Executor is nominated by the Decedent's Last Will and Testament and appointed by the Court while an Administrator is nominated and appointed by the Court when there is no Last Will and Testament. Both an Executor and Administrator is in charge of administering the Decedent’s probate estate.
The probate process can be subject to a lot of variables that can extend or delay the process, but generally a probate estate must be open a minimum of 6 months to allow creditors to file a claim against a Decedent’s Estate and can often take between 6 months to a year for complete administration of the estate to occur.