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Estate and Elder Law


There are several figures of interest to seniors and their families for 2011. They include long-term care spousal standards, long-term care premium deductibility limits, Social Security benefit changes, and Medicare premiums.

The Center for Medicare and Medicaid Services (CMS) has announced that there will be no changes in 2011 to the long-term care spousal standards that apply to a community spouse. A community spouse is a person who is not an inpatient in a medical institution or a nursing facility, but is married to a person who is an inpatient in a medical institution or a nursing facility (the institutionalized spouse).

The Protected Resource Allowance (PRA) (often referred to as the Community Spouse Resource Allowance, but technically this is incorrect) is the amount of assets that the community spouse is allowed to retain when the institutionalized spouse is eligible for Medicaid. The PRA is the greatest of either: (1) the Spousal Share (one-half of the total amount of joint countable assets as of the first day of continuous institutionalization for the institutionalized spouse), or (2) the Maximum Spousal Resource Standard at the time of application, or (3) the amount actually transferred to the community spouse as court-ordered spousal support, or (4) an amount determined at a hearing by the Department of Medical Assistance Services (DMAS). The PRA can be no more than the Maximum Spousal Resource Standard and no less than the Minimum Spousal Resource Standard. The Maximum and Minimum Spousal Resource Standards can change each year based on changes in the Consumer Price Index. The Maximum Spousal Resource Standard will remain at $109,560 for 2011, and the Minimum Spousal Resource Standard will remain at $21,912 for 2011.

The MMMNA has a minimum allowance amount and a maximum allowance amount. The MMMNA minimum allowance will remain at $1,821.25 for 2011, and the maximum maintenance needs allowance will remain at $2,739 for 2011. The community spouse excess Shelter Standard will remain at $546.38 for 2011. The utility standard deduction (SNAP) changed from 2008 to 2009. For 1 to 3 household members, the utility standard deduction decreased from $290 per month to $141 per month effective October 1, 2009, and the utility standard deduction increased from $365 per month to $381 per month for 4 or more household members.CMS has announced that the home equity limit will increase to $506,000, and the average monthly private nursing facility cost for all of Virginia, except northern Virginia, has increased to $5,933. This private nursing facility cost is used to determine penalty periods for receipt of Medicaid long-term care services when Medicaid applicants or recipients have transferred assets subject to a penalty period.

The IRS established new limitations for 2010 for the deductibility of long-term care insurance premiums from federal taxes. Premium amounts above the limits are not considered to be a medical expense. For those 40 years of age or less, the maximum deduction is $330; for those more than 40 years of age to 50 years of age, it is $620; for those more than 50 years of age to 60 years of age, it is $1,230; for those more than 60 years of age to 70 years of age, it is $3,290; and for those over 70 years of age, it is $4,110. In Virginia, premiums that are not deductible on the federal individual income tax return can be taken as a deduction on the Virginia individual income tax return.

For those on Social Security, there will not be a cost of living increase for 2011. The Supplemental Security Income (SSI) federal payment standard will not increase in 2011, and it will remain at $674 per month for an individual and $1,011 per month for a couple. Most Medicare Part B enrollees will see no increase in their Part B premium payments as a result of a "hold harmless" provision in the law. Approximately 27% of beneficiaries are not subject to the hold-harmless provision because they are new enrollees on or after January 1, 2011, they are subject to the income-related additional premium amount, or they do not have their Part B premiums withheld from Social Security benefit payments, including those who qualify for both Medicare and Medicaid and have their Part B premiums paid on their behalf by Medicaid. For those individuals, their Part B premiums will be a minimum of $115.40 per month. The Medicare Part D prescription drug plan benchmark premium for Virginia increased to $33.25 for 2011.

Sandra L. Smith joined Oast & Hook in 2003.  Oast and Hook has served Southeastern Virginia and North Carolina for more than 80 years. Visit their website at for more information. Ms. Smith practices primarily in the areas of elder law, estate planning, estate and trust administration, special needs planning, asset protection planning, long-term care planning and Veterans' benefits. She is certified as an Elder Law Attorney (CELA) by The National Elder Law Foundation (NELF). In 2008, Ms. Smith was named as a Rising Star by Virginia Super Lawyers magazine. Rising Stars names the state's top up-and-coming attorneys.