The Holidays Are Coming – Visitability – Part 2

Part 2 in a series on Visitability.

The most important thing you can do to make your home visit-able is to ensure that you have at least one zero-step entry into your home. That is access to your home that doesn’t require anyone navigating a change of level or steps. In case you do not have this currenyly you can even rent-a-ramp for the holidays to allow this access into and out of the house if needed.

Make your hallways wider and more accessibility friendly by moving any obstructions such as  furniture from them to facilitate ease of movement for anyone in a wheelchair, walker or mechanical  mobility devices, like a scooter chair. Also remember to remove all area rugs and floor mats since  those are notorious culprits in slip and falls and act as irritating obstacles to any wheelchairs  attempting to achieve firm and safe traction with flooring.

Most elderly family members might also like to congregate in the kitchen and even offer to help or want to help in the preparation of the festivity meals. To make them feel at home and at ease in offering, try to provide some counter space that is lower for them to work at. This can be achieved
by placing a lower table, even a folding card table, at the end of a central island so that they can pull their wheelchair or seat up to it, have enough knee clearance and lend a helping hand.

Another great quick fix is to use a pull-out bread board and have them work off that. Remember sometimes a sit down work surface is in fact appealing to anyone who might be performing repetitive actions like cutting or rolling — be they able-bodied or dealing with a mobility challenge.

Now that the meal is prepared, family and friends will gather around the dining table to share those special moments of communing and partaking in the fabulous feast. Ah but have we pre-planned where our guests who use wheelchairs are going to sit? Given the fact that most dining tables,
especially those with an apron, do not usually have enough knee clearance, we should probably arrange to have the table raised to provide a minimum of 27 inches of clear knee space below. This can be tricky since whatever we do to raise the table must ensure that the table is stable and secured in place.

After the meal is done, we may find some will retire to the closest living room or lounge and for that area of the room to be accommodating you might want to remove any coffee or side tables that make maneuverable pathways narrow or difficult to get around. I can’t tell you how many times I have
knocked my shin against a heavy coffee table as I plumped down on a deep sofa after stuffing myself on turkey. Oh yeah and speaking of that, make sure that all your seating options are not overly soft and unsupported since some of your guests might be elderly and need the support of a firm seat and
arms on a chair to safely sit down and stand up as they eventually make their way to the closest bathroom.

This brings us to the next area of the home that needs some pre-planning and attention. Make sure that at the very least the toilet seat is user-friendly by installing a plastic riser seat which you can get from any local DIY, drug or hardware store. While at the store you can also get yourself some
temporary grab bars that can be connected to the toilet or seat and provide the needed short term support. At your sink area, make sure that you have towels close to the front, perhaps on a floor-standing towel ring, and also tilt the mirror forward a little if you can to insure it is not to high for
use by those who might be in a wheelchair or elderly who have limited movement in their neck, back and shoulders.

Some of your mobility-challenged guests might also be staying overnight and will need some prepared area to bath and sleep. In the case of the bathing, assuming you don’t have a no-curb shower already in your home, simply add a removable transfer bench, preferably with some grab bar supports to a tub or shower and replace or add a hand held shower head to help control the flow
and direction of the water while bathing. These are available at your local hardware store.

At last, everyone is turning in for the night after a day of freedom of mobility and fun festivities. Your special guests have their sleeping accommodations all ready for them with their beds raised on  similar blocking as the dining table to facilitate transferring from their wheelchairs. The beds are also pushed apart to allow maximum maneuverability and visit-ability as the day draws to a close and everyone settles in for the night.

Oh yes and better put the holiday cookies on the lower counter space in the kitchen just in case Santa decides to leave his sleigh at home this year and make his deliveries from the back of a Rascal Turnabout Electric mobility chair! After all he is aging gracefully too, you know.

About the Author: Raad Ghantous is the principal of Raad Ghantous & Associates and is an expert in luxury hospitality, wellness centers, and medical & day spa developments.  He is also the owner of Your Home For A Lifetime, an A.D.A/ Barrier-free/ Universal design/Aging in place, full service design/build firm with over 15 years of experience  specializing in developing integrating elegant and seamless designs/modifications to new or existing structures.

The Irrevocable Income Only Trust

A Guest Post by Brian Mahoney, Esq.

An often discussed mechanism in Medicaid/Nursing Home planning is the IIOT, an Irrevocable Income Only Trust.

Aside from Nursing Home issues and look back periods we need to first ask about financing issues. Consider whether the Trustee might ever need to obtain financing on the realty, perhaps for a new burner or roof. Most Lenders will not mortgage realty owned by any irrevocable Trust. Would deeding realty into an IIOT make a pre-existing mortgage due and payable?

If the sale of realty after it is deeded into the IIOT is a possibility we can structure the IIOT as a Grantor Trust. If an Elder Trustmaker later moves into Assisted Living or into a Nursing facility, there is no spouse at home and that realty is sold by the Trust we want the Trustmaker to be able to elect the $250K capital gain exclusion.

To that end I insert a testamentary power of appointment allowing the Trustmaker to appoint Trust property by Will to a class of persons described in the IIOT. I do not include a lifetime power to appoint because it may be considered too much power in the skeptical eye of a Medicaid caseworker especially in this era of recession. Their position might be this would render the IIOT a “Medicaid qualifying trust.” It can be overcome but do we want to go into the trial Court to refute their arguments?

The Trustmaker should have no power to appoint trust principal to himself, his creditors, his estate or his estate’s creditors. The ultimate goal of an IIOT is for Trust owned assets to be non-countable and the less the IIOT contains for “escape mechanisms,” the more certain our objective becomes.

We do provide an “escape hatch,” in the IIOT in case the look back period is not met to avoid the worst of both worlds, i.e., principal that is “countable,” for Medicaid purposes, but which cannot be accessed by the Trustmaker. Provide for appointment of a Trust Protector who could be a corporate fiduciary, Attorney, C. P. A. or an individual who is not related or subordinate to a transferor or any Beneficiary within the meaning of Section 672(c) of the Internal Revenue Code.

The IIOT may provide that during the Trustmaker’s lifetime the Trust Protector may in writing, direct the Trustee to pay to or apply for the benefit of the children or grandchildren of the Trustmaker or their spouses, so much of trust principal as the Trust Protector in its sole discretion deems advisable.

To preserve Grantor Trust status then, along with the testamentary POA and “Trust Protector escape hatch,” we need to add a so-called Designating Person who can add a class of Beneficiaries. The class might consist of: children, grandchildren, spouses, or charities. The Trustmaker, the Trust Protector, any Beneficiary of the IIOT (including any person who may be added as a Beneficiary) any so-called “adverse party,” as defined in Section 672(a) of the Code, or any so-called “related or subordinate party,” as defined in Sect. 672(c) of the Code should not be appointed to serve as a Designating Person.

Can the Trustmaker(s) be Trustee? There appears to be no express prohibition against that, but with the current government deficits and budget cuts, why risk a higher level of scrutiny. If we have decent prospects as Trustee it may be safer to not have the Trustmaker in the position of power as a Trustee.

We all know the number of potential Adult Child/Trustee pitfalls that can develop. Will the existence of the Trustmaker’s testamentary POA be enough to keep an Adult Child/Trustee in line if he can be “disinherited,” from the very Trust that Child administers?

Include a provision allowing the Trustmaker to remove any Trust Protector or Trustee with or without cause at any time to allow the Trustmaker some much needed control in the event a relationship with a fiduciary sours in the future. Is that too much power for Medicaid? Can a Client afford not to have such removal powers?

Many practitioners are now acting as Trustees or Trust Protectors for their Clients’ IIOT’s knowing they’ll never act in a manner contrary to the Trustmaker’s best interests.

About the Author: Brian F. Mahoney is an estate planning and elder law attorney in Canton, MA.  He has been practicing for 26 years, and can be reached at www.attybrianmahoney.com.