If a spouse is receiving Social Security Income benefits and Medicaid, they should be extremely careful in settling and litigating their partition (division) of community property under Louisiana law. SSI and Medicaid are needs based programs. Generally, a recipient is only allowed one car, one house, furniture, clothing, and less than $ 2,000.00 in any other assets.
The assets that a spouse received from the division of community property may not be exempt assets for eligibility purposes. This can have serious consequences by rendering you ineligible for SSI and Medicaid benefits.
The SSI/ Medicaid recipient should make sure that:
The assets they are receiving from a partition of community property are exempt assets for SSI and Medicaid eligibility purposes, or
They must have a specific plan to immediate convert assets or spend down assets within the month that you receive the settlement to maintain your eligibility for SSI and Medicaid benefits.
If you are an SSI and/or Medicaid recipient that is involved in divorce litigation regarding division of property, you should consult a Medicaid planning attorney as soon as possible. Losavio & DeJean
It is not unusual for person’s receiving Social Security benefits to come into money or property by way of inheritance or personal injury settlement or judgment. To determine whether the receipt of this money or property will adversely affect your benefits, you must determine what type of Social Security benefits you are receiving.
There are two types are Social Security benefits: Supplemental Security Income (SSI) benefits and the other is called Social Security Disability (SSDI) benefits.
Social Security Disability benefits are paid to persons that have put in the required number of quarter payments over a specified period of time and is not needs based. A person drawing Social Security Disability benefits has no limits on what property they can own. Therefore, the receipt of an inheritance or personal injury settlement will have no effect on a person receiving Social Security Disability benefits.
On the other hand, Supplemental Security Income benefits is a needs-based program. Claimants are entitled to these benefits only if they do not exceed certain property limits. Therefore, the receipt of an inheritance or personal injury settlement may have an effect on a person receiving Supplemental Security Income benefits.
If you are unsure what kind of benefits you are drawing, you can obtain this information the Social Security Administration in order to take preventive actions to avoid losing eligibility of your Supplemental Security Income benefits.
Our next free seminar on How to Plan for Long Term Care is scheduled for Tuesday August 21, 2018 at the Ascension Parish Library – Gonzales 708 South Irma Blvd. Gonzales, LA 70737 at 9:30am, 12:00pm, and 6:00pm. To reserve your spot please call 877-868-8907
Due to the increased number of diagnosed cases of Alzheimer’s disease and dementia, there are more potential cases of heirs challenging wills based on the decedent’s incapacity. Challenging a will in Louisiana courts, can be expensive, time consuming and emotionally difficult. These types of cases can be difficult to win.
It is important to remember that under Louisiana law, there is a presumption that the decedent has capacity. The burden is on the person challenging the will to show that the decedent lacked legal capacity to execute at will at the time it was signed. If there is a tie, the person challenging the will lose.
Unless the decedent was an interdicted or an unemancipated minor at the time they executed the will, proving incapacity can be very difficult to prove. The strength of the decedent’s treating medical doctor can be critical and pivotal as to the outcome. Many times, doctors are unwilling or unable to give a strong opinion as to a lack of capacity.
Also, practical factors should be considered prior to filing a lawsuit such as the amount the person challenging the will is willing to spend on litigation as well as the amount that can potentially be won.
Should you have any questions about succession, you should consult with an experienced estate planning attorney.
It is not uncommon for people that have physical or mental disabilities to avoid treatment. When the medical records are reviewed, you will find long time periods where the claimant did not see a doctor for examinations or treatments.
These gaps, in the medical records can cause significant problems in proving a Social Security Disability (SDI) or Supplemental Security Income (SSI) claim. Without ongoing office visits, it will be difficult for a doctor to state whether your condition got better, worse or remained the same. It will be difficult for the Social Security Administration to assess your ongoing disability and determine its severity. It will also be difficult for your treating doctor to assist you in providing an accurate diagnosis, determination of disability and plan for treatment.
Further, your medical treatment may require testing, treatment and therapy. All of these elements can also be used to prove your Social Security Disability case.
If you are seeing a doctor, you should continue to make and attend recommended office medical visits. You should also comply when your doctor prescribes testing, treatment and therapy.
Avoiding treatment can not only adversely affect your health and wellbeing, it can also hurt your claim with the Social Security Administration.
If you have any questions concerning Social Security claims, you should consult an experience Social Security attorney.
One of the biggest mistakes that people make in applying for Social Security benefits is that they believe and assume that the Social Security Administration is their advocate. They believe that the Social Security Administration is advocating for them and taking care of their cases. The truth is that the Social Security Administration is a federal administrative body to administer claims. Don’t get me wrong. The people that work with the Social Security Administration are good hard-working people.
But the Social Security Administration is not the claimant’s attorney. Although the Social Security Administration will assist to some degree in getting medical evidence, it is the responsibility of the clamant to obtain and submit medical evidence. The Social Security Administration will not assist a person in advocating the claimant’s claims. Without an attorney, claimant’s find that they are representing themselves. They will find that their claims have been denied because evidence was not received or important parts of their cases were not submitted. To add insult to injury, it is difficult to appeal these decisions.
It is very important that a claimant consult with an experienced attorney that handles Social Security cases. A claimant’s case is important to them. The process in obtaining benefits is a long one and often times, the claimant is experiencing financial distress. Time is of the essence. So, it is important that claimant make the most of their opportunity to make sure that their cases are being properly presented.
In the past, many heirs were reluctant to open legal succession in Louisiana due to the fees and costs. There is a perception that opening a succession even for a small one, is expensive.
However, recent Louisiana legislation now makes completing a small succession relatively easy without having to file succession pleadings and incurring expensive fees and costs.
If the decedent died without a will and the net value of the decedents estate is worth less than $ 75,000.00, then this type of small succession may be done by affidavit.
The heirs will be required to follow the statutory requirements as to its execution and form for this affidavit.
This small succession procedure affidavit is not the answer for all small successions. If the heirs are fighting, if there is litigation, or if the assets and debts are not known, it may still be necessary to open a legal succession with the courts.
As always, heirs should consult an experienced succession attorney before taking any action on their own regarding a succession.
You are invited to attend our Free Senior Work Shop on Wednesday, May 9, 2018 at 12:00pm and 6:00pm at the East Baton Rouge Library – Goodwood, 7711 Goodwood Blvd. Baton Rouge, LA. Please RSVP seating is limited. Please call to reserve 225-892-9702
One of the biggest things that motivates people to our law firm to engage in estate planning or updating their wills is when they go on an airplane trip. The thoughts to traveling high in the air in a large aircraft scares people into executing wills and powers of attorney. The perception is that flying is very dangerous. However, human perception is sometimes not based in reality.
What is your probability of dying in a commercial airplane crash? According to statistics, you have a one in 3.5 million chance of being involved in a commercial airplane crash where at least one person dies (not necessarily you).
In comparison, statistics show that you have a one in 100,000 chance of dying in an automobile accident. That’s right. You are at least 35 times more likely to die riding in a car accident today than if you got on a commercial aircraft.
So, what is the moral of the story? Instead of waiting to estate plan when you are taking a trip on a plane, you should be much more worried about estate planning today if you are riding in a car. One should not put off estate planning or the execution of powers of attorney. Our health and/or capacity is not guaranteed. Plan today!
If you have any questions about wills, estate planning or powers of attorney, contact an experienced estate planning attorney.
A living will is probably the most misnamed legal document.It has nothing to do with “living” and it’s not a “will”.
To put it bluntly, it is a directive to be allowed to die. A person that signs a living will is declaring that they be allowed to die if certain facts are present. In Louisiana, euthanasia is illegal. Certain elements have to all be met before a living will becomes effective. The required elements are as follows:
The person must have an incurable injury, disease or illness
This injury, disease or illness must be certified to be a terminal and irreversible condition by two (2) physicians (one of whom is the treating physician of that person) who have personally examined the person
The physicians must determine that my death will occur whether or not life-sustaining procedures are utilized; and
The application of life-sustaining procedures would serve only to prolong the dying process artificially
If all of these elements are met, the person may direct that all life-sustaining procedures be withheld or withdrawn. The person can also express a directive as to whether to allow food and water to be administered invasively if all the above elements are met.
The most common example of where all these required elements are met is if a person is in an incurable coma and whose life is being artificially prolonged by the use of a respirator.
A person interested in executing a living will, powers of attorney and a will, should consult an experienced estate planning attorney.