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<title>DJC Frequently Asked Questions</title>
<link>http://djclawsc.com</link>
<description />
<language>en-us</language>
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    <title><![CDATA[What is the difference between a guardianship and conservatorship?]]></title>
    <link>http://djclawsc.com/faqs.php?id=79</link>
    <guid>http://djclawsc.com/faqs.php?id=79</guid>
    <pubDate>Mon, 26 Nov 2012 17:26:07 -0500</pubDate>
    <description><![CDATA[A guardianship is established when a person is unable to care for him/herself and needs help in making medical decisions, housing placement decisions, and generally taking care of him/herself.  A conservatorship is necessary when a person is unable to manage his/her financial affairs, such as paying bills, managing accounts and real estate.  Guardianships and conservatorships are separate legal proceedings that occur in Probate Court.  However, in most cases, both a guardianship and conservatorship are sought together. An estate planning attorney in Charleston can help you with both proceedings.&nbsp;]]></description>
</item>
<item>
    <title><![CDATA[When must the Will be filed with the Probate Court?]]></title>
    <link>http://djclawsc.com/faqs.php?id=77</link>
    <guid>http://djclawsc.com/faqs.php?id=77</guid>
    <pubDate>Mon, 26 Nov 2012 17:25:09 -0500</pubDate>
    <description><![CDATA[Any person in possession of an original Will must file the Will with the Charleston County Probate Court within thirty days of death.  However, it is not required that the actual Probate of the estate begin at the time the Will is filed with the Probate Court.]]></description>
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<item>
    <title><![CDATA[How long does it take to go through Probate?]]></title>
    <link>http://djclawsc.com/faqs.php?id=72</link>
    <guid>http://djclawsc.com/faqs.php?id=72</guid>
    <pubDate>Mon, 26 Nov 2012 17:24:52 -0500</pubDate>
    <description><![CDATA[In Charleston County, it usually takes a year to eighteen months to complete the Probate process.  If an estate tax has to be returned, it can take longer.]]></description>
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<item>
    <title><![CDATA[Will my house have to be Probated if it is titled in the name of my spouse and me?]]></title>
    <link>http://djclawsc.com/faqs.php?id=69</link>
    <guid>http://djclawsc.com/faqs.php?id=69</guid>
    <pubDate>Mon, 26 Nov 2012 17:24:11 -0500</pubDate>
    <description><![CDATA[It depends.  If the house is titled simply in your name and your spouse&rsquo;s name (i.e., John Smith and Betty Smith), Probate in Charleston County will be necessary to take your name off the property at your death.  However, if the property is titled in both your name and your spouse&rsquo;s name followed by the magic words &ldquo;with rights of survivorship&rdquo;, your interest in the property will automatically be transferred to your spouse at the time of your death without having to go through Probate.  However, if you and your spouse die at the same time or if your spouse predeceases you, Probate will be required.]]></description>
</item>
<item>
    <title><![CDATA[When is Probate necessary?]]></title>
    <link>http://djclawsc.com/faqs.php?id=68</link>
    <guid>http://djclawsc.com/faqs.php?id=68</guid>
    <pubDate>Mon, 26 Nov 2012 17:23:54 -0500</pubDate>
    <description><![CDATA[In South Carolina, probate is necessary when there is an asset that is owned or titled only in the name of a person who has died  Probate is not usually necessary for joint bank accounts, payable on death accounts (PODs), annuities, life insurance policies, IRAs or 401(k)s, or any other asset where a beneficiary has been named.]]></description>
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    <title><![CDATA[If I give away assets to become eligible for &ldquo;Aid and Attendance&rdquo; benefits, will Medicaid penalize me for the transfer?]]></title>
    <link>http://djclawsc.com/faqs.php?id=62</link>
    <guid>http://djclawsc.com/faqs.php?id=62</guid>
    <pubDate>Mon, 26 Nov 2012 17:23:15 -0500</pubDate>
    <description><![CDATA[Yes.  Although assets can be given away before filing for aid and attendance benefits without a VA-imposed penalty, the same rule does not apply for Medicaid benefits for long-term care.  Under the Medicaid rules, if the assets are given away within five years from the time of the filing of the Medicaid application a penalty may result.  An expert VA benefits lawyer in South Carolina should be consulted before making any gifts to qualify for &ldquo;Aid and Attendance&rdquo; benefits.  The gift could make the veteran or his/her widowed spouse ineligible for nursing home Medicaid for months or even years.]]></description>
</item>
<item>
    <title><![CDATA[Can a veteran or his/her widowed spouse pay a family member as a caregiver to increase the amount of &ldquo;Aid and Attendance&rdquo; benefits that can be paid?]]></title>
    <link>http://djclawsc.com/faqs.php?id=60</link>
    <guid>http://djclawsc.com/faqs.php?id=60</guid>
    <pubDate>Mon, 26 Nov 2012 17:22:47 -0500</pubDate>
    <description><![CDATA[Yes.  If there is a written caregiver agreement in place, a family member or friend can be paid for caring for the veteran or his/her widowed spouse.  The payment is considered a medical expense and can result in increased &ldquo;Aid and Attendance&rdquo; benefits to pay for the expense. &nbsp;Your VA benefits lawyer in Charleston can help you make the proper arraignments.&nbsp;]]></description>
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<item>
    <title><![CDATA[Can a person receive Social Security disability and Medicaid benefits?]]></title>
    <link>http://djclawsc.com/faqs.php?id=64</link>
    <guid>http://djclawsc.com/faqs.php?id=64</guid>
    <pubDate>Mon, 26 Nov 2012 17:20:32 -0500</pubDate>
    <description><![CDATA[Yes.  Dual eligibles are individuals who are entitled to Medicare Part A and/or Part B and are eligible for some form of Medicaid benefits.
A person who is eligible for Social Security Disability is entitled to receive Medicare benefits.  The person may also be eligible to receive Medicaid benefits.  These individuals are called &ldquo;dual eligibles&rdquo;.   For medical supplies or services that are covered by Medicare and Medicaid, those supplies and services are paid by Medicare first and the difference is covered by Medicaid. &nbsp;Your special needs attorney in Charleston can advise you on exactly which benefits you or your loved one may be entitled to.&nbsp;]]></description>
</item>
<item>
    <title><![CDATA[Can the Special Needs Trust own a house?]]></title>
    <link>http://djclawsc.com/faqs.php?id=49</link>
    <guid>http://djclawsc.com/faqs.php?id=49</guid>
    <pubDate>Mon, 26 Nov 2012 17:19:20 -0500</pubDate>
    <description><![CDATA[The purchase of a house is one of the most important purchases the family wants to make with litigation proceeds. The trust may own a residence for the use of the trust beneficiary. If other family members will live in the residence, the issue of rent has to be addressed.
In some instances, it may be preferable to not have the trust own the house. This is because Medicaid has a claim against the house to the extent of the amounts paid by Medicaid. Instead, a house may be purchased with the trust for the disabled person, or the disabled person may have a life estate interest in the property with a family member having a remainder interest in the property. The family member cannot be simply given this remainder interest.
Exploring all of the alternatives with a Charleston special needs lawyer is imperative before a residence is purchased.]]></description>
</item>
<item>
    <title><![CDATA[What is the most important factor to be considered in determining whether a Special Needs Trust is necessary? ]]></title>
    <link>http://djclawsc.com/faqs.php?id=40</link>
    <guid>http://djclawsc.com/faqs.php?id=40</guid>
    <pubDate>Mon, 26 Nov 2012 17:16:20 -0500</pubDate>
    <description><![CDATA[Public Benefits. The mere acceptance of a litigation award will make a person ineligible for public benefits until the proceeds have been spent and the client's assets are generally less than $2,000. Instead of enhancing a person's life, a portion of the proceeds will be spent for medical expenses for which Medicaid would have paid. The client is actually left with very little of the litigation award.
This does not have to occur. A Charleston attorney who understands public benefit law can help structure the award and create a Special Needs Trust that will preserve public benefits currently being received and future benefits.]]></description>
</item>
<item>
    <title><![CDATA[Does a residence count as an asset against the resource limit if the equity in the residence is more than $500,000?]]></title>
    <link>http://djclawsc.com/faqs.php?id=34</link>
    <guid>http://djclawsc.com/faqs.php?id=34</guid>
    <pubDate>Mon, 26 Nov 2012 17:13:46 -0500</pubDate>
    <description><![CDATA[Yes. A residence counts as an asset in South Carolina if the equity in the residence is more than $500,000. In determining the value of the residence, the tax assessed value is not used in determining the value of the home.]]></description>
</item>
<item>
    <title><![CDATA[Can a person qualify for Medicaid benefits for nursing home care even if his or her income is more than the income limit (currently $2,022 per month)?]]></title>
    <link>http://djclawsc.com/faqs.php?id=32</link>
    <guid>http://djclawsc.com/faqs.php?id=32</guid>
    <pubDate>Mon, 26 Nov 2012 17:13:13 -0500</pubDate>
    <description><![CDATA[An Income Trust can be created to receive the income of the person receiving Medicaid nursing home benefits.  The creation and funding of all the income, minus $30, will satisfy the income requirement. &nbsp;Your Charleston elder lawyer can help you determine if this is the best plan for you and your loved ones.&nbsp;]]></description>
</item>
<item>
    <title><![CDATA[When should I start planning for Medicaid?]]></title>
    <link>http://djclawsc.com/faqs.php?id=30</link>
    <guid>http://djclawsc.com/faqs.php?id=30</guid>
    <pubDate>Mon, 26 Nov 2012 17:11:40 -0500</pubDate>
    <description><![CDATA[Medicaid planning shouldn&rsquo;t be delayed until nursing home care is imminent, although Medicaid planning is still available for those who unexpectedly need Medicaid to help pay for nursing home care.  Even people who are in a nursing home can still engage in Medicaid planning to help protect a portion of their assets.  Ideally, Medicaid planning should begin as soon as health issues appear.  Waiting until the last minute can reduce the options for Medicaid planning or eliminate altogether any opportunity to protect your assets.  It can also result in the loss of your ability to protect your home.
Once you&rsquo;ve decided that you want to receive Medicaid benefits or want to develop a plan of care that includes Medicaid as one of a number of options that will pay for long-term care, you need to plan quickly.  The longer you wait, the greater the chance that the option of using Medicaid to pay for long-term care will be lost or that the amount of assets you can protect will be lost or reduced.  Procrastination can cost you tens of thousands of dollars and even your house.
Medicaid laws are constantly changing.  If you wait to do Medicaid planning, the Medicaid laws may change and take away many strategies for protecting resources that are currently available to you. For each month that Medicaid planning is postponed, it is possible that more than $5,200 of your assets will no longer be able to be protected. Talk to a Charleston County elder lawyer today for help.]]></description>
</item>
<item>
    <title><![CDATA[How can I tell if I&rsquo;m eligible to receive Medicaid?]]></title>
    <link>http://djclawsc.com/faqs.php?id=27</link>
    <guid>http://djclawsc.com/faqs.php?id=27</guid>
    <pubDate>Mon, 26 Nov 2012 17:09:58 -0500</pubDate>
    <description><![CDATA[Basic Eligibility Criteria:
Medicaid will pay for nursing home care if the applicant passes the following three (3) tests: 1) a resource test; 2) an income test; and 3) determination of need for intermediate or skilled care:

Resource test: A single person seeking Medicaid can only have $2,000 in countable assets.  A couple may only have $68,480 in countable assets.  Countable assets do not include the residence of the person seeking Medicaid benefits so long as the equity in the residence is less than $500,000.  The following items are also included as countable assets:     
Other real estate
The Medicaid applicant&rsquo;s Banks accounts, investment accounts, annuities, IRAs, and 401(k)s
Stock, government bonds, savings bonds, CDs, businesses, and whole life insurance (if the face value is more than $10,000 and the cash value is more than $1,500).
 
Income test: If the applicant&rsquo;s income is less than $2,022 per month, regardless of whether the applicant is married or single, the applicant passes the income test.  If the applicant&rsquo;s income is more than $2,022, the applicant is still eligible for Medicaid if the applicant establishes an income trust. Income of a spouse or a family member is not counted towards the $2,022.
Determination of need for intermediate or skilled care: A person needs intermediate care if he/she is unable to perform two of the five activities of daily living without substantial assistance.  The activities of daily living are: 
The inability to feed oneself
The inability to dress oneself
The inability to bathe oneself
Incontinence
The inability to ambulate or transfer oneself
 

Gifts and Transfers of Resources:
Many people want to give away assets in order to become eligible for Medicaid.  They think that by giving away assets until they have only $2,000 left if they are single, or $68,480 left if they are married, they can become eligible for Medicaid.  However, the law places limits on giving away or transferring assets for purposes of obtaining Medicaid eligibility.
Gifts or other transfers made within 60 months prior to applying for Medicaid may result in an applicant becoming ineligible for Medicaid.  The period of ineligibility, if any, that may result from a gift or a transfer for less than full consideration depends upon when the transfer was made and the amount of the transfer.
Some types of assets can be transferred without resulting in any period of ineligibility.  These include:

Transfers to certain persons such as spouses, disabled or blind children, to a trust for the benefit of a blind or disabled child, or a trust for the benefit of a disabled person under the age of 65.
Transfers of a residence to (i) a minor or disabled child of the applicant; (ii) a child of the applicant who has resided in the principal residence for at least two years prior to the applicant&rsquo;s admission to the nursing home and was providing care to the applicant which enabled the applicant to reside at their home; or (iii) a sibling of the applicant if the sibling has an ownership interest in the house and has been residing there for at least one year prior to the applicant&rsquo;s admission to the nursing home.

Other transfers that may be made that don&rsquo;t result in any potential period of ineligibility are:

Transfers of exempt assets
Payment of an obligation
Transfers by a community spouse (A community spouse is a spouse of the person on Medicaid that lives either in the home or in an assisted living facility or nursing home) after Medicaid eligibility is established.
 




It is therefore possible to transfer assets and still be eligible for Medicaid.  However, you should consult with a Charleston lawyer experienced in Medicaid law before making any transfers or gifts.]]></description>
</item>
<item>
    <title><![CDATA[What is Medicaid Planning?]]></title>
    <link>http://djclawsc.com/faqs.php?id=25</link>
    <guid>http://djclawsc.com/faqs.php?id=25</guid>
    <pubDate>Mon, 26 Nov 2012 17:08:45 -0500</pubDate>
    <description><![CDATA[Medicaid planning is the process by which families become eligible to receive Medicaid benefits.
Financial resources are the primary barriers to qualifying for Medicaid to pay for nursing home care. In order to be eligible for Medicaid, a single person may not have more than $2,000 in countable assets.  A married couple may not have more than $68,480 of countable assets.  Medicaid also looks at the income of the person seeking Medicaid.  The current income limit is $2,022 per month.
Medicaid doesn&rsquo;t allow people to simply transfer assets to their children and family to reduce their assets below the resource limits.  Any assets transferred within five years of applying for Medicaid are subject to penalties being imposed by Medicaid.  The penalty takes the form of Medicaid not paying for nursing home care.
There are strategies that can be used to protect some or all of a client&rsquo;s excess resources when applying for Medicaid.  Medicaid planning is the use of those strategies to protect as much of those resources as legally possible.
Medicaid planning, as practiced by our firm, is much more than simply protecting assets. &nbsp;Our Charleston elder lawyers help clients determine whether a person should be cared for at home, in an assisted-living facility, or in a nursing home.
Medicaid planning also includes assisting the client in evaluating long-term care facilities, developing strategies for the client to be admitted to the facility, and making sure the client&rsquo;s rights are protected while in the facility.
We also work with clients to help them receive the best care possible.  Arranging for evaluations for diagnosis of dementia or other illness or helping to make the facility safer for the client can also be part of the planning services that we provide.  In short, we help clients deal with the financial, physical, emotional, and familial issues that arise when helping people who need care.]]></description>
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