August 20, 2025 • 21 mins
Facing the possibility that you or your spouse might need nursing home care is daunting enough without the added stress of potential financial ruin. The stark reality—nursing homes cost between $10,000 and $15,000 monthly—means even substantial estates can be rapidly depleted, leaving a healthy spouse vulnerable.
In this deeply informative conversation, Elder Law attorney Greg McIntyre and his colleague Jane Dearwester demolish common misconceptions about spousal protection while revealing powerful strategies to preserve assets. The duo emphasizes that marriage alone doesn't grant financial authority over a spouse's assets—a dangerous assumption many couples make. They detail why a comprehensive general durable power of attorney with specific gifting provisions serves as the essential "linchpin" for any protection plan.
The attorneys explain two game-changing tools most people never hear about: Lady Bird deeds and Medicaid Asset Protection Trusts. Lady Bird deeds offer immediate home protection without Medicaid's five-year look-back period—allowing you to maintain complete control of your property while shielding it from recovery. For broader asset protection, irrevocable trusts create crucial separation between you and your assets while still allowing you to receive income benefits. As Greg explains, "You get the benefits as the lifetime income beneficiary and you get the benefit of the long-term care benefit. It's just a win-win."
With 70% of people over 65 eventually needing long-term care, preparation isn't optional—it's essential. Take the first step toward protecting your spouse and preserving your legacy by scheduling a free consultation at mcelderlawcom/scheduling or calling 1-888-999-6600.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Greg McIntyre (00:01):
Hi, I'm Greg McIntyre, the Elder Law Guy,
here with a special guest, ourattorney Jane Dearwester.
Hi there, glad to be here, whois a fireball of estate planning
and elder law information aswell as does a great job with
litigation.
Our topic today is how toprotect your spouse if you have
(00:27):
to go in a nursing home.
So for me, jane, it's if I haveto go into an assisted living
or nursing home facility and Iwant to make sure that I don't
suck up all the assets, I don'tspend down all the assets and
leave Steph, my wife, destitute.
Jane Dearwester (00:46):
Right, this is a major concern that we get.
Clients are always asking aboutthis.
When we're out speaking in thecommunity, when we're out giving
seminars in the community, thisis probably one of the top
three questions I get frompeople all the time.
They want to know what happens.
How can I, how can I protecteverything?
(01:07):
And then I also get people whoargue with me and say you have
to sell everything you have.
It's the only option.
Greg McIntyre (01:14):
So no, no, no no, if you want to relegate
yourself to be a ship with anengine and no rudder and just
get bounced around, bouncedaround by the waves of life,
okay, and, and this situationthat's going to come upon, 70%
of people over 65, 70% of peopleover 65 are going to need some
(01:36):
type of long-term care duringtheir life, either in-home,
assisted living or nursing homecare.
And it ain't cheap.
We're talking average 10 to$15,000 a month, but you can
spend down even a large estate.
We're talking average $10,000to $15,000 a month, but you can
spend down even a large estate.
And then you're looking at ah,do I need to sell the house?
And if you don't sell the house, they're going to attach a
claim to your estate and forceto sell the house if you pass
away.
Not good for spouses and notgood for children and not good
(02:00):
for you.
So really I like to work withspouses, jane, on protecting the
assets together.
But also, what if just oneneeds to go into care?
How do we make sure that thehealthy spouse, let's say Steph,
is going to have a ton ofhealthy years to live when I
wear my body out?
Okay, and I need help.
(02:22):
And us men check out firstanyway.
Jane Dearwester (02:24):
Usually.
Greg McIntyre (02:25):
It'll be like a vacation to me.
It'll be the first vacationI've had in years, but but I do
want to make sure that she'staken care of, of course, and it
could be a wife making sure ahusband's taken care of.
Yeah, and ideally we'd belooking at this together.
Yes, but but let's talk aboutways.
(02:46):
I always start with thefundamentals General durable,
power of attorney.
The most important linchpin isthat one thing you pull and the
entire machine falls apart.
That's right, or it can holdeverything together.
Jane Dearwester (03:03):
Yes, that really pivotal linchpin thing is
the general durable power ofattorney Important I'm always
preaching this that to come inand just have us do a power of
attorney for someone is so quick, easy, relatively inexpensive.
And if you don't have it inplace, your other option is
legal guardianship, which is alot of court oversight,
(03:26):
exponentially more expensive, Alot more money for the attorney.
Greg McIntyre (03:30):
So, while I'm preaching, don't do it right.
No, because I want to make sureyou have it in place.
Okay, you don't understand howeasy it is so easy, but also
don't understand how complex itis.
Jane Dearwester (03:41):
Yeah.
Greg McIntyre (03:42):
The draft is like 23 pages long and there's a
reason, because if it doesn'tsay it in the document, you
don't give that power, and Iwant to give that 100% power to
do what I can do.
Jane Dearwester (03:54):
Yeah, one of the most important things that's
in our powers of attorney andothers is that gifting provision
that you allow your spouse togift even to themselves, if your
spouse is your agent.
Greg McIntyre (04:07):
even under the rules and there's special ways
to do that.
But but when you sit down withme or jane, the question I'm
going to have for, really, thegrieving wife, the crying wife
two out of three times that'swho it is it's upset because she
just figured out that they'regoing to lose everything to pay
(04:29):
for their husband's long-termcare stay, and it's okay.
Well, did your husband?
Was he thoughtful enough, smartenough to go see Greg and Jane
and put in place a general,durable power of attorney ahead
of time?
If not, we're talking aboutguardianships and then we're
under the watchful eye of thecourt and we're begging the
(04:50):
court, we're petitioning thecourt to do what we want to do
and the court doesn't alwaysagree.
And it takes a lot longer, it'smore expensive.
Jane Dearwester (05:02):
And it gives the opportunity for other family
members to come in and contestand who's going to be the best
guardian and you could end upwith a third party attorney
basically a stranger.
Greg McIntyre (05:09):
She's going to pick an attorney that's over
your assets and your healthcare,maybe.
Yeah Right, I don't want to dothat job and nobody wants me to.
So pick the person that's rightfor you, okay, yeah, but Jane,
we're married, I can doeverything for my spouse.
What are?
What are these guys talkingabout?
Jane Dearwester (05:29):
Yeah, that's a huge, common, very, very common
misconception.
Married couples think they donot need to have a power of
attorney because they make anassumption that, well, we're
married, that means we can doanything for each other.
And I'm always correctingpeople no, that's not what that
means.
(05:50):
Even spouses have to have thepower of attorney in place, bruh
.
Greg McIntyre (05:55):
If I become incompetent?
Steph is stuck.
Stuck, I mean.
She can't move any real estate.
She can't do any protectivedeed work if she hasn't done
that.
She can't put a ladybird deedon the house because I got to
sign it Right.
She can't refi it, she can'tsell it, can't take out a block,
(06:19):
she can't take out a loan.
Nope, she's stuck with any realestate.
We own Individual retirementaccounts, by definition, by the
name.
It's in the name Individual, oh, but I'm the beneficiary.
That's cool.
I ain't dead yet.
You're only a beneficiary, andthat only comes into being when
(06:41):
somebody dies.
So all these responses and theseweird things we tell ourselves
we need to snap to reality,which is just because you're
married in the eyes of the Lordand the eyes of the state
doesn't mean that you haveaccess to your spouse's assets,
(07:02):
because you don't, unless yourspouse is giving you access
through that special documentthat's well-written and
comprehensive a general, durablepower of attorney.
I'm telling you nine times outof 10, jane, an attorney and an
individual, when they're tryingto look at the options and draft
the general, durable power ofattorney, are going to nix and
(07:22):
say no way my agent should beable to give to themselves.
Horrible idea in a marriage,especially between spouses, when
there is potential long-termcare issues in the future.
That way, you want to be ableto transfer freely assets and do
whatever we need to do toqualify for a benefit for the
person who needs care.
If I think I might need careand I really want to protect
(07:42):
myself, my spouse and my assets,I'm going to put that in place
first and then I'm going to moveto the healthcare power of
attorney, which I would saywould be equally important,
because people get stuck there.
That's required in a benefitsapplication.
Hey, that's one of the firstthings they're going to ask is
where's the healthcare power ofattorney?
So we need that foundationalwork in place general, durable
(08:03):
power of attorney, healthcarepower of attorney.
And then let's talk about assetpreservation.
It's setup of assets.
We get our foundations in place.
I'm looking at in a consult forestate planning okay, is there
a primary residence or is thereother real estate?
Primary residence, is thereother real estate?
(08:28):
How long are the funds?
What are the total assetsRetirement plus private
brokerage accounts plus savingschecking, cds, money market,
whole life insurance.
What are the assets?
Is their money stacked highenough that they can take a hit
to really self-fund andself-insure for a long-term care
stay or is it really in dangerof being spent down?
And I'm looking at the makeupof the assets the money versus
(08:50):
the real estate to tell mewhether a ladybird deed is right
for the home or we're lookingat going into trust and whether
we need, or some clients willwant, to instantly protect the
home with a ladybird deedbecause it's not affected by the
look back period, and we'lltalk about what that is and the
rest.
We use a trust to do it and weuse a special type of trust
(09:13):
irrevocable trust, because arevocable living trust no help
in long-term care planning atall.
I see attorneys and and andindividuals who've done
long-term care planning at all.
I see attorneys and individualswho've done long-term care
planning and they're sittingthere with these revocable
living trusts and, attorney, Ialready got this all set up.
It's a revocable living trustand I'm the trustee Because you
have your hand in that cookiejar.
You keep your power ofappointment legally.
(09:34):
That's this key thing.
You can revoke it, amend it.
You made it, you control it.
You're the trustee.
You are totally that hand inthe cookie jar.
They consider it your assetsstill and collectible assets
right the same as in probate.
So, jane, a ladybird deed.
Let's say, my house is myprimary asset.
(09:56):
I need to get my powers ofattorney and foundational work
in place.
How would a ladybird deed?
Jane Dearwester (10:07):
help protect me , my spouse, and pass my asset
and free me up for benefits.
Yeah, I love the Lady Birddeeds.
As you know and others know, mybackground is in real estate.
I did that for about 15 yearsbefore I transitioned into elder
law and never heard of LadyBird deeds, never really dealt
with them, because it's notreally a real estate attorney
advice.
Really it's.
(10:27):
It's an estate planning justlike selling a house.
It's like right estate planningor real estate attorneys don't
mess around ladybird deed.
But I love how easy andpowerful the ladybird deed is
because because you decide whoyou want to leave your property
to after you pass.
You sign the deed now, butduring your lifetime you
(10:49):
maintain all power and controlover your property.
You can do anything with it,including selling it.
You don't have to get theultimate beneficiaries or
grantees to sign off on anything, but upon your death it
immediately passes to thosenamed individuals outside of
probate, doesn't affect yourlong-term care qualification.
(11:11):
Medicaid can't come back andtry to levy against it.
So it is such an incrediblypowerful document.
Greg McIntyre (11:18):
I like to also call it the genius deed because
the most genius things areelegant and effective in their
simplicity, and that's what itis.
Look back period Doesn't matter.
The benefits allow it in NorthCarolina to put a ladybird deed
on today and apply for thebenefit tomorrow.
(11:38):
It's okay.
And it's important again goingback to the powers of attorney
to have that gifting provisionthat if you haven't had the Lady
Bird deed in place and yourspouse has maybe already crossed
over that line of competencyand you have the gifting
provision, you can do the LadyBird deed then yeah, if I'm a
(12:00):
child of someone needing careand I want to protect my spouse,
maybe my children too, and I'ma child acting for, to put in
place this Lady Bird deedbecause mommy and daddy didn't
do it and didn't think aboutdoing it Right, it's the first
thing I'm looking for, to makesure because they're going to
ultimately going to ultimatelyreceive that home, which could
(12:21):
be considered a gift.
It's arguable in the court,arguable and I've argued it but
could be considered a gift, okay.
So, but other things, trustlet's talk about the trust Jane.
Let's talk about, you know, Iwant to put, I want to create a
(12:42):
container that can holdownership to all my liquid
assets, and I'm going to putsome real estate in there too.
Okay, the Medicaid AssetProtection Trust.
Let's talk about thatspecialized, irrevocable trust.
How does it help me protectmyself and my spouse, should I
(13:02):
need care?
Jane Dearwester (13:04):
It just gives that arm's length separation, so
that those assets, whatever youput in there, are not countable
for the spouse who needs care.
Right, that's what we're tryingto do.
But I think where people showresistance is they don't want to
let go of that control.
They want to have their hand inthe cookie jar.
They don't want to take it out.
They're like I like cookies, Ilike having my hand here.
(13:25):
But it's truly in their bestinterest to create that
separation, that lethalseparation.
Greg McIntyre (13:31):
By gaining protection, I'm relinquishing
control to a trusted maybe atrusted child as my trustee.
But don't they have a legalfiduciary duty to preserve those
assets for my use and benefitfor the rest of my life?
Jane, absolutely yes.
Beneficiary.
(13:51):
So if I've got rentalproperties in that trust, if
I've got investments, I stillget the dividends, interest and
rents, I still get the incomeduring my life.
So I still just get all thebenefits right, right, I think
that's my asset.
Jane Dearwester (14:09):
I think once people understand how it works
it softens the idea of lettinggo of control.
But I think initially peoplecan have some resistance,
especially people of a certainera right that are heading
toward, you know, uh, theirlatter years.
They can say I don't want tolet go of this, I've worked my
(14:29):
whole life for this and there isa saying the more you try to
maintain control of something,the more it controls you.
Greg McIntyre (14:39):
Ah, that's a good one.
So the tighter we hold on,really control is an illusion,
anyway, that's true.
What we can do is set it up soyou get all the benefits but not
the detriments when it comes toobtaining a benefit to pay for
(15:01):
long-term care.
So you get the benefits as thelifetime income beneficiary and
you get the benefit of thelong-term care benefit.
Okay, so that's just a win-win.
So that's just a win-win, andthose are really great tools for
many people, especially as weage, to really shift to a more
(15:26):
protective, contemplative,prepared role.
Okay, and I love the MedicaidAsset Protection Trust and the
power it has.
But, alas, best laid plans, Ido my work Got to change title
(15:49):
to the assets to the trust.
Jane Dearwester (15:50):
Yes, don't forget, that's an important step
.
Greg McIntyre (15:52):
Fund, the trust Fund, the trust Fund, the trust,
and that's so important that weget it out of your personal
name, titled in the name of thetrust, accounts real estate.
We'll draft the deeds totransfer the title into the
trust.
Jane Dearwester (16:09):
And for the assets we can't put in the trust
directly, we need to changethose beneficiary designations
on other qualified accounts toname the trust as the
beneficiary.
Also, your life insurance namethe trust as the beneficiary, so
everything's being funneledinto.
Greg McIntyre (16:25):
Or another discussion I always have with
clients, jane is or?
So life insurance has threepositions within it there's the
owner of the policy.
There's the insured, whose lifeis tied to the policy, which
doesn't have to be theindividual.
That's the owner I can take outa life insurance policy on you,
(16:48):
Jane, if I want to.
And there's the beneficiary.
So three positions okay.
The trust can be the owner andin many times we want to
contemplate the trust being theowner, especially with whole
life policies that have value,you're still the insured and the
(17:09):
beneficiary.
When a life insurance productis in a trust, the beneficiary
becomes the trust beneficiariesand we can reference that
specific product and who's thebeneficiary in the trust.
So that is a really cool thingto do, because the benefits
rules limit how much lifeinsurance you can have and the
value of it to qualify for thebenefit.
(17:32):
So we want to be contemplative.
I look at, jane.
A Medicaid asset protectiontrust is the best safe I can
build for you in North Carolinaand we close that door.
The only outlet is this hole forincome that's coming out to you
and, if you need care, there'salternate lifetime income
beneficiaries where that flow ofincome can switch to the
(17:55):
alternates, which might be lovedones, it might be children, so
it's not counted as your incometo be paid toward a facility and
what's called patient monthlyliability and the benefit.
So it's just your socialsecurity pension, non-divertible
income.
So we want to preserve theincome and the assets.
And life insurance many timesis an asset and we need to pay
(18:17):
attention to the value of thelife insurance and whether we
want that to be owned by thetrust.
Annuities are life insuranceproducts.
Life insurance companiescreated annuities.
Those are life insuranceproducts.
The trust can be the owner.
You can still be the payee offan annuity, paying out right,
you're the lifetime incomebeneficiary of the trust.
So we really want to understandwhat these different assets are
(18:41):
and how you can put them in thesafe, okay, so anyway, jane,
this has been a great discussionand I appreciate you having it
with me today.
Jane Dearwester (18:51):
There's so much to know, right, there's so much
to know.
Greg McIntyre (18:54):
I think we hit some high points.
There's so much nuance as welland additional things that we
could talk about all day.
Yeah, that's why it's importantto sit down with a competent,
knowledgeable estate planningand elder law attorney to
discuss these things, to protectyourself, your spouse and your
(19:17):
family, your children andgrandchildren.
So you know what we do, jane Iknow Jane would be happy to do
it is we offer a freeconsultation to sit down and
discuss these matters, and youcan take advantage of that by
calling one of our officenumbers.
(19:37):
Hey, we have a one numberthat'll ring all of them, so
just call and get us.
It's 1-888-999-6600.
Or you can schedule directly onour calendars.
We open ourselves up.
We're very free and open at ourfirm.
We open our calendars up toeveryone.
Go to mcelderlawcom schedulingand you can schedule directly on
(20:02):
mine, jane's or one of ourother attorneys' calendars.
And Jane, thank you very much.
I appreciate you pulling metoday and discussing this great
topic.
Yeah, you have a great day,jane.
Jane Dearwester (20:15):
You too Thanks.
Hi, I'm Greg McIntyre, the Elder Law Guy,
here with a special guest, ourattorney Jane Dearwester.
Hi there, glad to be here, whois a fireball of estate planning
and elder law information aswell as does a great job with
litigation.
Our topic today is how toprotect your spouse if you have
(00:27):
to go in a nursing home.
So for me, jane, it's if I haveto go into an assisted living
or nursing home facility and Iwant to make sure that I don't
suck up all the assets, I don'tspend down all the assets and
leave Steph, my wife, destitute.
Jane Dearwester (00:46):
Right, this is a major concern that we get.
Clients are always asking aboutthis.
When we're out speaking in thecommunity, when we're out giving
seminars in the community, thisis probably one of the top
three questions I get frompeople all the time.
They want to know what happens.
How can I, how can I protecteverything?
(01:07):
And then I also get people whoargue with me and say you have
to sell everything you have.
It's the only option.
Greg McIntyre (01:14):
So no, no, no no, if you want to relegate
yourself to be a ship with anengine and no rudder and just
get bounced around, bouncedaround by the waves of life,
okay, and, and this situationthat's going to come upon, 70%
of people over 65, 70% of peopleover 65 are going to need some
(01:36):
type of long-term care duringtheir life, either in-home,
assisted living or nursing homecare.
And it ain't cheap.
We're talking average 10 to$15,000 a month, but you can
spend down even a large estate.
We're talking average $10,000to $15,000 a month, but you can
spend down even a large estate.
And then you're looking at ah,do I need to sell the house?
And if you don't sell the house, they're going to attach a
claim to your estate and forceto sell the house if you pass
away.
Not good for spouses and notgood for children and not good
(02:00):
for you.
So really I like to work withspouses, jane, on protecting the
assets together.
But also, what if just oneneeds to go into care?
How do we make sure that thehealthy spouse, let's say Steph,
is going to have a ton ofhealthy years to live when I
wear my body out?
Okay, and I need help.
(02:22):
And us men check out firstanyway.
Jane Dearwester (02:24):
Usually.
Greg McIntyre (02:25):
It'll be like a vacation to me.
It'll be the first vacationI've had in years, but but I do
want to make sure that she'staken care of, of course, and it
could be a wife making sure ahusband's taken care of.
Yeah, and ideally we'd belooking at this together.
Yes, but but let's talk aboutways.
(02:46):
I always start with thefundamentals General durable,
power of attorney.
The most important linchpin isthat one thing you pull and the
entire machine falls apart.
That's right, or it can holdeverything together.
Jane Dearwester (03:03):
Yes, that really pivotal linchpin thing is
the general durable power ofattorney Important I'm always
preaching this that to come inand just have us do a power of
attorney for someone is so quick, easy, relatively inexpensive.
And if you don't have it inplace, your other option is
legal guardianship, which is alot of court oversight,
(03:26):
exponentially more expensive, Alot more money for the attorney.
Greg McIntyre (03:30):
So, while I'm preaching, don't do it right.
No, because I want to make sureyou have it in place.
Okay, you don't understand howeasy it is so easy, but also
don't understand how complex itis.
Jane Dearwester (03:41):
Yeah.
Greg McIntyre (03:42):
The draft is like 23 pages long and there's a
reason, because if it doesn'tsay it in the document, you
don't give that power, and Iwant to give that 100% power to
do what I can do.
Jane Dearwester (03:54):
Yeah, one of the most important things that's
in our powers of attorney andothers is that gifting provision
that you allow your spouse togift even to themselves, if your
spouse is your agent.
Greg McIntyre (04:07):
even under the rules and there's special ways
to do that.
But but when you sit down withme or jane, the question I'm
going to have for, really, thegrieving wife, the crying wife
two out of three times that'swho it is it's upset because she
just figured out that they'regoing to lose everything to pay
(04:29):
for their husband's long-termcare stay, and it's okay.
Well, did your husband?
Was he thoughtful enough, smartenough to go see Greg and Jane
and put in place a general,durable power of attorney ahead
of time?
If not, we're talking aboutguardianships and then we're
under the watchful eye of thecourt and we're begging the
(04:50):
court, we're petitioning thecourt to do what we want to do
and the court doesn't alwaysagree.
And it takes a lot longer, it'smore expensive.
Jane Dearwester (05:02):
And it gives the opportunity for other family
members to come in and contestand who's going to be the best
guardian and you could end upwith a third party attorney
basically a stranger.
Greg McIntyre (05:09):
She's going to pick an attorney that's over
your assets and your healthcare,maybe.
Yeah Right, I don't want to dothat job and nobody wants me to.
So pick the person that's rightfor you, okay, yeah, but Jane,
we're married, I can doeverything for my spouse.
What are?
What are these guys talkingabout?
Jane Dearwester (05:29):
Yeah, that's a huge, common, very, very common
misconception.
Married couples think they donot need to have a power of
attorney because they make anassumption that, well, we're
married, that means we can doanything for each other.
And I'm always correctingpeople no, that's not what that
means.
(05:50):
Even spouses have to have thepower of attorney in place, bruh
.
Greg McIntyre (05:55):
If I become incompetent?
Steph is stuck.
Stuck, I mean.
She can't move any real estate.
She can't do any protectivedeed work if she hasn't done
that.
She can't put a ladybird deedon the house because I got to
sign it Right.
She can't refi it, she can'tsell it, can't take out a block,
(06:19):
she can't take out a loan.
Nope, she's stuck with any realestate.
We own Individual retirementaccounts, by definition, by the
name.
It's in the name Individual, oh, but I'm the beneficiary.
That's cool.
I ain't dead yet.
You're only a beneficiary, andthat only comes into being when
(06:41):
somebody dies.
So all these responses and theseweird things we tell ourselves
we need to snap to reality,which is just because you're
married in the eyes of the Lordand the eyes of the state
doesn't mean that you haveaccess to your spouse's assets,
(07:02):
because you don't, unless yourspouse is giving you access
through that special documentthat's well-written and
comprehensive a general, durablepower of attorney.
I'm telling you nine times outof 10, jane, an attorney and an
individual, when they're tryingto look at the options and draft
the general, durable power ofattorney, are going to nix and
(07:22):
say no way my agent should beable to give to themselves.
Horrible idea in a marriage,especially between spouses, when
there is potential long-termcare issues in the future.
That way, you want to be ableto transfer freely assets and do
whatever we need to do toqualify for a benefit for the
person who needs care.
If I think I might need careand I really want to protect
(07:42):
myself, my spouse and my assets,I'm going to put that in place
first and then I'm going to moveto the healthcare power of
attorney, which I would saywould be equally important,
because people get stuck there.
That's required in a benefitsapplication.
Hey, that's one of the firstthings they're going to ask is
where's the healthcare power ofattorney?
So we need that foundationalwork in place general, durable
(08:03):
power of attorney, healthcarepower of attorney.
And then let's talk about assetpreservation.
It's setup of assets.
We get our foundations in place.
I'm looking at in a consult forestate planning okay, is there
a primary residence or is thereother real estate?
Primary residence, is thereother real estate?
(08:28):
How long are the funds?
What are the total assetsRetirement plus private
brokerage accounts plus savingschecking, cds, money market,
whole life insurance.
What are the assets?
Is their money stacked highenough that they can take a hit
to really self-fund andself-insure for a long-term care
stay or is it really in dangerof being spent down?
And I'm looking at the makeupof the assets the money versus
(08:50):
the real estate to tell mewhether a ladybird deed is right
for the home or we're lookingat going into trust and whether
we need, or some clients willwant, to instantly protect the
home with a ladybird deedbecause it's not affected by the
look back period, and we'lltalk about what that is and the
rest.
We use a trust to do it and weuse a special type of trust
(09:13):
irrevocable trust, because arevocable living trust no help
in long-term care planning atall.
I see attorneys and and andindividuals who've done
long-term care planning at all.
I see attorneys and individualswho've done long-term care
planning and they're sittingthere with these revocable
living trusts and, attorney, Ialready got this all set up.
It's a revocable living trustand I'm the trustee Because you
have your hand in that cookiejar.
You keep your power ofappointment legally.
(09:34):
That's this key thing.
You can revoke it, amend it.
You made it, you control it.
You're the trustee.
You are totally that hand inthe cookie jar.
They consider it your assetsstill and collectible assets
right the same as in probate.
So, jane, a ladybird deed.
Let's say, my house is myprimary asset.
(09:56):
I need to get my powers ofattorney and foundational work
in place.
How would a ladybird deed?
Jane Dearwester (10:07):
help protect me , my spouse, and pass my asset
and free me up for benefits.
Yeah, I love the Lady Birddeeds.
As you know and others know, mybackground is in real estate.
I did that for about 15 yearsbefore I transitioned into elder
law and never heard of LadyBird deeds, never really dealt
with them, because it's notreally a real estate attorney
advice.
Really it's.
(10:27):
It's an estate planning justlike selling a house.
It's like right estate planningor real estate attorneys don't
mess around ladybird deed.
But I love how easy andpowerful the ladybird deed is
because because you decide whoyou want to leave your property
to after you pass.
You sign the deed now, butduring your lifetime you
(10:49):
maintain all power and controlover your property.
You can do anything with it,including selling it.
You don't have to get theultimate beneficiaries or
grantees to sign off on anything, but upon your death it
immediately passes to thosenamed individuals outside of
probate, doesn't affect yourlong-term care qualification.
(11:11):
Medicaid can't come back andtry to levy against it.
So it is such an incrediblypowerful document.
Greg McIntyre (11:18):
I like to also call it the genius deed because
the most genius things areelegant and effective in their
simplicity, and that's what itis.
Look back period Doesn't matter.
The benefits allow it in NorthCarolina to put a ladybird deed
on today and apply for thebenefit tomorrow.
(11:38):
It's okay.
And it's important again goingback to the powers of attorney
to have that gifting provisionthat if you haven't had the Lady
Bird deed in place and yourspouse has maybe already crossed
over that line of competencyand you have the gifting
provision, you can do the LadyBird deed then yeah, if I'm a
(12:00):
child of someone needing careand I want to protect my spouse,
maybe my children too, and I'ma child acting for, to put in
place this Lady Bird deedbecause mommy and daddy didn't
do it and didn't think aboutdoing it Right, it's the first
thing I'm looking for, to makesure because they're going to
ultimately going to ultimatelyreceive that home, which could
(12:21):
be considered a gift.
It's arguable in the court,arguable and I've argued it but
could be considered a gift, okay.
So, but other things, trustlet's talk about the trust Jane.
Let's talk about, you know, Iwant to put, I want to create a
(12:42):
container that can holdownership to all my liquid
assets, and I'm going to putsome real estate in there too.
Okay, the Medicaid AssetProtection Trust.
Let's talk about thatspecialized, irrevocable trust.
How does it help me protectmyself and my spouse, should I
(13:02):
need care?
Jane Dearwester (13:04):
It just gives that arm's length separation, so
that those assets, whatever youput in there, are not countable
for the spouse who needs care.
Right, that's what we're tryingto do.
But I think where people showresistance is they don't want to
let go of that control.
They want to have their hand inthe cookie jar.
They don't want to take it out.
They're like I like cookies, Ilike having my hand here.
(13:25):
But it's truly in their bestinterest to create that
separation, that lethalseparation.
Greg McIntyre (13:31):
By gaining protection, I'm relinquishing
control to a trusted maybe atrusted child as my trustee.
But don't they have a legalfiduciary duty to preserve those
assets for my use and benefitfor the rest of my life?
Jane, absolutely yes.
Beneficiary.
(13:51):
So if I've got rentalproperties in that trust, if
I've got investments, I stillget the dividends, interest and
rents, I still get the incomeduring my life.
So I still just get all thebenefits right, right, I think
that's my asset.
Jane Dearwester (14:09):
I think once people understand how it works
it softens the idea of lettinggo of control.
But I think initially peoplecan have some resistance,
especially people of a certainera right that are heading
toward, you know, uh, theirlatter years.
They can say I don't want tolet go of this, I've worked my
(14:29):
whole life for this and there isa saying the more you try to
maintain control of something,the more it controls you.
Greg McIntyre (14:39):
Ah, that's a good one.
So the tighter we hold on,really control is an illusion,
anyway, that's true.
What we can do is set it up soyou get all the benefits but not
the detriments when it comes toobtaining a benefit to pay for
(15:01):
long-term care.
So you get the benefits as thelifetime income beneficiary and
you get the benefit of thelong-term care benefit.
Okay, so that's just a win-win.
So that's just a win-win, andthose are really great tools for
many people, especially as weage, to really shift to a more
(15:26):
protective, contemplative,prepared role.
Okay, and I love the MedicaidAsset Protection Trust and the
power it has.
But, alas, best laid plans, Ido my work Got to change title
(15:49):
to the assets to the trust.
Jane Dearwester (15:50):
Yes, don't forget, that's an important step
.
Greg McIntyre (15:52):
Fund, the trust Fund, the trust Fund, the trust,
and that's so important that weget it out of your personal
name, titled in the name of thetrust, accounts real estate.
We'll draft the deeds totransfer the title into the
trust.
Jane Dearwester (16:09):
And for the assets we can't put in the trust
directly, we need to changethose beneficiary designations
on other qualified accounts toname the trust as the
beneficiary.
Also, your life insurance namethe trust as the beneficiary, so
everything's being funneledinto.
Greg McIntyre (16:25):
Or another discussion I always have with
clients, jane is or?
So life insurance has threepositions within it there's the
owner of the policy.
There's the insured, whose lifeis tied to the policy, which
doesn't have to be theindividual.
That's the owner I can take outa life insurance policy on you,
(16:48):
Jane, if I want to.
And there's the beneficiary.
So three positions okay.
The trust can be the owner andin many times we want to
contemplate the trust being theowner, especially with whole
life policies that have value,you're still the insured and the
(17:09):
beneficiary.
When a life insurance productis in a trust, the beneficiary
becomes the trust beneficiariesand we can reference that
specific product and who's thebeneficiary in the trust.
So that is a really cool thingto do, because the benefits
rules limit how much lifeinsurance you can have and the
value of it to qualify for thebenefit.
(17:32):
So we want to be contemplative.
I look at, jane.
A Medicaid asset protectiontrust is the best safe I can
build for you in North Carolinaand we close that door.
The only outlet is this hole forincome that's coming out to you
and, if you need care, there'salternate lifetime income
beneficiaries where that flow ofincome can switch to the
(17:55):
alternates, which might be lovedones, it might be children, so
it's not counted as your incometo be paid toward a facility and
what's called patient monthlyliability and the benefit.
So it's just your socialsecurity pension, non-divertible
income.
So we want to preserve theincome and the assets.
And life insurance many timesis an asset and we need to pay
(18:17):
attention to the value of thelife insurance and whether we
want that to be owned by thetrust.
Annuities are life insuranceproducts.
Life insurance companiescreated annuities.
Those are life insuranceproducts.
The trust can be the owner.
You can still be the payee offan annuity, paying out right,
you're the lifetime incomebeneficiary of the trust.
So we really want to understandwhat these different assets are
(18:41):
and how you can put them in thesafe, okay, so anyway, jane,
this has been a great discussionand I appreciate you having it
with me today.
Jane Dearwester (18:51):
There's so much to know, right, there's so much
to know.
Greg McIntyre (18:54):
I think we hit some high points.
There's so much nuance as welland additional things that we
could talk about all day.
Yeah, that's why it's importantto sit down with a competent,
knowledgeable estate planningand elder law attorney to
discuss these things, to protectyourself, your spouse and your
(19:17):
family, your children andgrandchildren.
So you know what we do, jane Iknow Jane would be happy to do
it is we offer a freeconsultation to sit down and
discuss these matters, and youcan take advantage of that by
calling one of our officenumbers.
(19:37):
Hey, we have a one numberthat'll ring all of them, so
just call and get us.
It's 1-888-999-6600.
Or you can schedule directly onour calendars.
We open ourselves up.
We're very free and open at ourfirm.
We open our calendars up toeveryone.
Go to mcelderlawcom schedulingand you can schedule directly on
(20:02):
mine, jane's or one of ourother attorneys' calendars.
And Jane, thank you very much.
I appreciate you pulling metoday and discussing this great
topic.
Yeah, you have a great day,jane.
Jane Dearwester (20:15):
You too Thanks.
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.