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Michael Gilfix, National Experts Form Trump Policy Analysis Group


The Trump Policy Analysis Group (TPAG)1 has convened to consider probable changes in law that will affect older Americans and those with special needs. Initial TPAG focus is on entitlements, public benefits, tax, special needs planning, and veterans’ benefits.


We used a three-fold analysis:

  • Stated policy (declared Trump policies and those of the Republican Congressional Leadership);
  • “Realpolitik” (circumstances and factors rather than explicit ideology, often considered “pragmatism”); and
  • Educated speculation (based largely on experience and knowledge of TPAG members who have been leaders in these fields for decades).


On January 20, 2017 both the White House and both houses of Congress will be in Republican hands, not seen since 2006. As president Obama said shortly after being elected in 2008, elections have consequences. We acknowledge this reality.

During the long and divisive campaign, differences in priorities and agendas between the major parties, particularly in social and health policy, were greater than in any recent election. In our opinion, the uncertainty and challenges now facing seniors, disabled, and medically needy Americans are unequaled and unsettling.

Our goals are twofold. First, to objectively analyze real and probable changes in government policies that directly impact older Americans and Americans with disabilities. Second, to identify planning and other steps these populations should take to preserve or, ideally, to increase quality of health care and quality of life.


President-elect Trump has consistently stated that the Social Security and Medicare programs are to remain intact and (presumably) solvent. How solvency would be achieved in light of impending bankruptcy of both programs (Medicare long before Social Security) remains to be seen.  Government and non-government economists only disagree about when insolvency will occur, not if it will occur. As one of their proposals to counter insolvency, Trump and Congressman Ryan (Speaker of the House) are promoting Social Security and Medicare privatization.

The Affordable Care Act took some steps designed to extend the solvency of Medicare. Trump, as President-elect, announced that he would keep parts of the Affordable Care Act but did not explain how he would pay for it. With so many members of younger generations convinced that Social Security will not be there for them, preservation of the fiscal health of both Social Security and Medicare is one of the main challenges facing this Administration.


1. Rising Fears of Significant Restrictions

A significant majority of Americans are seriously worried about the cost of health care and long term care, in particular. Restrictions on benefits and legislative changes that restrict or limit access to government programs such as Medicaid can only heighten such fears.

2. The Trump and Ryan Block Grant Proposal

Currently, Medicaid is administered at the federal level by the Center for Medicare and Medicaid Services (CMS). While each state has its own state Medicaid Plan, there are mandates and there are constraints.

Block grants, which were first proposed by then Speaker of the House Newt Gingrich in 1995, presumably mean that each state would receive a certain number of Medicaid dollars. Each state would then decide how to utilize and spend those dollars.  In some states, little would change. In other states, changes could be profound. For individuals who may rely on Medicaid, this is a time of uncertainty and concern.  This means, in turn, that planning needs will vary from state to state.

TPAG is aware of some details and elements of proposed plans. Some are designed to restrict protective planning – to make it much more difficult for older Americans to protect their homes and other assets while qualifying for Medicaid, particularly in a long-term care setting. Planning challenges could therefore become dramatically more difficult. Increasingly, older Americans and their families will need up-to-date information and advice to understand and qualify for needed services. This will be particularly true for the majority of older Americans who will need home care services and who need to reside in skilled nursing facilities.

Americans with special needs and their families face as many worries, including concerns about possible reductions in protections and services.

TPAG believes that planning will increasingly involve multiple generations to enhance quality of life, quality of care, and asset protection.

3. Protection of Family Assets: Focus on Protecting the Family Residence

The vast majority of older homeowners will view protection of the residence as a core value, a legacy for future generations. Appropriate legislation must be preserved. Appropriate planning steps must be taken, particularly in light of possible changes in Medicaid, the only federal program that can subsidize or pay for the cost of skilled nursing care. No specific proposals to threaten existing tax and Medicaid protections for the residents have yet emerged.


1. Gift and Estate Tax

President-elect Trump calls for the elimination of gift and estate tax, perhaps replaced by a “mark to market” tax of capital gains at death. Perhaps a compromise package will not eliminate the tax but will significantly increase the level of estate and gift tax protection. Note that the current level of federal protection is historically high at $5,450,000 per person. If any estate tax remains, it would likely be reduced from the current 40% tax rate.

2. Capital Gains Tax

Different proposals have been proffered by President-Elect Trump, Speaker Ryan and others regarding limitations on “stepped up basis” upon an individual’s passing. For some families, this could result in net tax increases.

For high-end practitioners, those who focus on avoiding estate tax, the challenges are obvious. The number of individuals requiring such sophisticated planning will, at best, dramatically diminish. For most older Americans, the avoidance of estate taxes will have little or no impact from a tax planning perspective and the focus will shift to income taxation. Further, the impacts on entitlements and family financial security could be profound.

3. Corporate and Individual Income Tax

Corporate and individual tax rates for higher earners, in particular, would be substantially reduced. The long-term impact – beyond the obvious increase in after tax income, is impossible to predict. As with most modeling and forecasting, projected outcomes depend on presumptions.


No proposals have yet been made that would directly affect services for special needs children and adults.  Medicaid block grants could adversely affect special needs residents of states that decide – at the state level – to reallocate or otherwise restrict funding for both governmental and non-governmental providers. The reach of Medicaid block grants could significantly reduce or even eliminate the benefit of special needs trusts which maximize assets for the person with a disability.

Additionally, it is possible that support for expanded charter schools and school choice could expand options. This has become more probable than just possible what with Trump’s appointment of Betsy DeVos, as Secretary of Education, an outspoken advocate for charter schools and the dismantling of publicly funded schools. Many special education advocates fear these expanded options could come at a price of diminishing procedural and substantive protections of the Individual with Disabilities Education Act (IDEA), and even reduce or remove the funding formula that follows eligible individual students with special needs under IDEA).


President-elect Trump is presumably supportive of maintaining and perhaps expanding services for veterans. At the same time, proposals that predate the election have been introduced that could restrict access to needed programs, such as Aid and Attendance, which provides financial assistance for veterans and spouses of veterans who need higher levels of home care assistance. While new legislative and perhaps regulatory restrictions could make it more difficult for veterans and their spouses to obtain benefits, proactive planning will be an inevitable need across the nation.


President-elect Trump has said that he accepts the United States Supreme Court decision effectively legalizing gay marriage. (His Vice President, Mike Pence, may have a different viewpoint.) The Supreme Court ruled that the U.S. Constitution guarantees the right for same-sex couples to marry in all 50 states creating uniformity across the nation in recognition of the rights of same-sex couples.


A core conclusion of TPAG is that families will become more insular, more protective of themselves, their assets, and future generations. They will be more focused on what they can control and truly value – their families – and less on public policies that are difficult to influence. This has myriad implications for attorneys, financial planners, and other professionals who work directly with America’s elders, those with special needs and their families. A premium will be placed on advance planning. Inevitably, this will increase involvement of younger generations.  The demand for multi-generational planning – planning that involves and relies on involvement of children and grandchildren – will expand dramatically.


TPAG thoroughly understands that most Americans, and older Americans in particular, are fearful at this point in time. Above all, do not panic. The stock market panicked at the end of Election Day but soon resolved and moved higher than ever. TPAG believes that the stock market’s response to the election is a lesson for everyone: Learn, watch, be advised, and protect yourself and your family. The changes in store will take time.

TPAG’s goal and its purpose is to turn fear into hope. This is what good planning does.

TPAG will continue to be a source of balanced, objective information about developments at the national level. TPAG is working hard to track initiatives by President-elect Trump, Republicans and responsive proposals of Democrats.

TPAG will work hard to be “one step ahead.”

**Members of the TPAG group include Michael Gilfix of Palo Alto, California, Vincent J. Russo of Garden City, New York, Harry S. Margolis of Boston, Massachusetts, Frank Johns of Greensboro, North Carolina, and Tim Nay of Portland, Oregon.

mike gilfix vincent russo harry margolis
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The Importance of having an Advocate when receiving Medical Care

By Myra Gerson Gilfix

At our law firm, we have always strongly urged our clients to consider their end-of-life wishes when we counsel them. To that end, we have used the completion of an Advance Directive as a focal point. Even more important, we have advised them that the signing of this important document is only a first step.They must communicate with their loved ones about their values and how they want them expressed when they can no longer make decisions for themselves. We all have stories about end-of-life care that didn't honor the way people chose to die, leaving loved ones feeling guilty and regretful. Clearly we need to be able to communicate effectively the kind of care we want and don't want well before we find ourselves at the end of life.

This conversation (or series of conversations) is extremely critical in order to have the hope that our care at this juncture of our lives is the way we want it.

In addition to that important conversation, there is another very important conversation we should have with those who care about us.

That conversation must emphasize our desire to secure and maintain the highest quality of life possible during whatever phase of life we are in. That means letting your loved ones know that you will need them to help you through illnesses and injuries. And that this help will need to take the form of supporting you through the maze that is our medical system. That could mean everything from being an extra set of ears at the doctor's office, to vigilance at the hospital bedside.

That means becoming knowledgeable and asking lots of good questions throughout our lives -- on our own behalf and on behalf of loved ones.

That means partnering with our health care professionals to make the wisest decisions about tests and treatments.

The advance directive is not just applicable at the end of life. It matters whenever the signer does not have decision-making capacity. In addition, if you've signed an Advance Directive, you've gone through the process of choosing a trusted person to make decisions for you when you cannot. So that person might also be an appropriate choice for an "every day" advocate or health partner. The agent, then, may not only be the legal decision maker, s/he most productively could also be an advocate, interpreter, analyzer and spokesperson. Good medical care requires your involvement as long as you're able, and it requires the help of an advocate. You together with that person (or another friend or family member -- or even a community of people willing to help) can help you in a variety of ways -- from getting an accurate diagnosis, knowing whether a medical test is a good idea, understanding treatment options, to preventing errors that can harm you. A growing body of evidence shows that patient outcomes improve when patients and their loved ones more actively participate.

Especially in the hospital setting, the presence of an advocate can mean the difference between making end-of-life decisions in the short term -- or making them many years down the road.

Talking to Dad about his driving: the surprising side of difficult conversations

Do you think it will be tough to ask Dad to hand over the keys? 

Surprisingly, a recent study from Liberty Mutual showed that 84 percent of seniors are open to talking about the safety of their driving, but that only six percent have actually had the discussion. As Liberty Mutual put it, “Seniors are open to driving conversations, but their children are avoiding it.”
Straightforward conversations about so-called "difficult" topics can alleviate misunderstanding, and they may help families avoid future litigation. Family members often welcome the opportunity to discuss important, if sensitive, issues more than you might expect.

Many families also have Advance Health Care Directives in place – and if you are not sure whether or not your family members have one, you've found a good place to start the discussion. If your parents or family members are open to it, ask them to explain their wishes, motivations and concerns to you. Be prepared to discuss a range of specific medical topics.

Aging parents also need to take initiative to spark these conversations when they can. Estate plan conversations, for example, can seem daunting, but parents need to talk to their adult children about their plan. They have created it carefully. Now, to help ensure that the estate plan goes according to plan, parents should consider talking with their families about how to distribute assets and why they have made certain choices.

Some parents anticipate that the conversation might be difficult now, and that is a reasonable concern. But just imagine what emotions and conflicts could arise if a child or family member is shocked when the will is read. Explaining motivations and allowing discussion in a supportive environment can help everyone accept and prepare for the future.

The conversation itself may be difficult, but it can avoid adding stress, surprise or uncertainty at a later, more challenging time.
For more than 30 years, Gilfix & La Poll Associates LLP has innovated creative legal solutions to help you manage and plan the future of your estate.

To contact an estate planning attorney, visit or call (800) 244-9424.

Michael Gilfix discusses Medi-Cal asset seizure in Mercury News

A growing number of older Californians are concerned about Medi-Cal asset seizure, according to a new article from the San Jose Mercury News.

The California State Assembly recently passed a new bill designed to limit Medi-Cal’s ability to recover assets from the estates of deceased Medi-Cal beneficiaries. As the law stands currently, Medi-Cal can seize a substantial portion of an estate -- including a residence -- to recover the benefits used to cover medical care through Medi-Cal.

But Governor Jerry Brown’s advisors are encouraging a veto of the bill in order to avoid revenue losses that would hurt the state’s budget, as reported by the Mercury News.  

Even if Governor Brown does sign the bill, the new law would limit but not entirely prohibit Medi-Cal asset recovery.

The Mercury News turned to Michael Gilfix for comment on the growing concerns surrounding Medi-Cal asset seizure.

Gilfix pointed out that whether or not the bill is vetoed, Californians can take steps to protect their estates from Medi-Cal recovery. In the article, he commented that assets, and residences in particular, can be protected through proactive estate planning.

According to the Mercury News, many older Californians who already benefit from Medi-Cal are surprised to learn that their estates, which they hoped to pass down to their heirs, are at risk.

Gilfix & La Poll helps clients plan for Medi-Cal eligibility in a way that legally protects assets to the greatest extent possible and minimizes the impact of taxes on the estate.

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Gilfix discusses Medi-Cal planning in the San Francisco Chronicle

Michael Gilfix In the August 24, 2014 issue of the San Francisco Chronicle, reporter Kathleen Pender wrote about Medi-Cal reimbursement or “estate claims” that are imposed on a person’s estate if they receive Medi-Cal and after they pass. The article makes the point that the state could seek “an unlimited amount” from an individual’s estate when “Medi-Cal pays all the person’s health care costs.” This claim applies to all benefits received from age 55.

A major concern is that such claims blindside tens of thousands of older Californians who are receiving “expanded Medi-Cal” under President Obama’s Affordable Care Act. They are shocked to learn that their estate, most typically consisting of their residence, will be essentially attacked upon their passing.

Michael Gilfix points out in the article that assets could be protected from such Medi-Cal recovery claims. “There are certain ways to transfer a home out of an estate, although this can raise tax issues,” Michael Gilfix is quoted in the article.

Clients of Gilfix & La Poll understand that the residence can be protected and that many potential tax traps can be avoided with careful planning.

Learn more by contacting Gilfix & La Poll Associates LLP at

Long-Term Care Planning: Never Too Soon

The senior citizen population of the U.S. is expected to reach some 71.5 million by 2030. Fortunately, the "graying" U.S. population is demonstrating a newly heightened awareness of long-term care planning. Long-term care has long been one of the ignored areas of estate planning. People tend to dislike thinking about getting older and needing a plan in place if they become infirm. So they don't. Then, the burden of their care — financial, emotional and physical — lands on their children and grandchildren. Too often, their families place them in a care facility which they might not have selected, had they been able to choose.

Long-term care planning is also important for older adults with disabilities; their numbers will also increase to roughly 21 million by 2040. By 2050, it is estimated that there will be at least 25 million people in the U.S. who are using long-term care, either at home or in an assisted living or skilled nursing facility. How will those 25 million people pay for their care?

Many of them hope to rely on Medicare or Medi-Cal, but Medicare only pays for up to 100 days of care in a skilled nursing facility after three days in a hospital, and only if that skilled care has been deemed necessary. After the first 20 days, Medicare also has a co-pay which must be met.

Simply stated, Medicare is not a meaningful source of assistance when long-term care services are needed.

The average cost of a nursing home stay in California is $250 per day. Assisted living facilities in California cost an average of $2,900 per month. Adult day services typically run at least $80 a day. Hourly home care costs run between $15 and $30 for a home health aide, who assists with activities of daily living (bathing, dressing, etc.), but is not a registered medical professional and cannot meet more than basic health care needs.

If a more skilled home care provider is needed, the cost is typically between $20 and $40 per hour.

Medicaid, known as Medi-Cal in California, can pay the cost of skilled nursing care, but only after careful planning steps are taken and eligibility is achieved.

Good long-term care sidesteps complete reliance on federal support. A person's plans may include long-term care insurance, which covers care typically not covered by "regular" health insurance, Medicaid or Medi-Cal. Long-term care insurance helps cover care for someone who cannot perform at least some of the activities of daily living — bathing, dressing, restroom use, eating and moving from chair to bed and back again.

If you are considering a long-term care policy, know that not all insurance agents are aware that you will need a policy that covers both in-home and assisted living care for at least three years (and longer, if possible).

There are multiple long-term care policy options, including policies that provide life insurance benefits if long-term care coverage is never needed. Consult with your estate planning attorney to determine what policy best fits your estate needs for the future.

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Health Care Decisions Day April 16, 2014

A Message from Myra Gerson Gilfix

We at Gilfix & La Poll Associates believe that estate planning includes planning with regard to what will happen to us – not just to our property and other assets – when we're at the end of our lives. We make it part of our service to you to enter into a discussion about what you want and don't want to happen when the end of life is near. This is only the first conversation; we encourage you to share your feelings, values and wishes with your loved ones and medical practitioners. We practice what we preach. If we don't engage in this planning, we’re vulnerable to what can transpire by default – spending our last few days in an ICU, even if that’s at odds with our needs and preferences.

“Dying well” is quite personal. Your conversation(s) with the people you’re closest to lets them know how you want to die and how they, surviving friends and family members, can help carry out your wishes without uncertainty and guilt. People who’d prefer to die at home can do so, and benefit from pain management and comfort over costly and "heroic" measures. Having this conversation before a crisis – or being open to such conversations – gives everyone time to digest, reflect and integrate the information.

We want you to be clear about end of life treatment so that family members and medical providers have the guidance they need to respect your preferences. Loved ones need to talk to one another when circumstances aren’t so charged. Better that these conversations occur around a dining table than around a hospital bed.

Most of you have already signed an Advance Health Care Directive. That is a huge benefit to you and to your loved ones. But be sure to keep the conversations going. The person you appointed to make decisions on your behalf when you are unable to speak for yourself needs to feel comfortable with your wishes and to understand your values. Having the rest of your family "on board" is also important.

Wednesday, April 16, is Health Care Decisions Day. Let this be a reminder to communicate with those you care about so that your life can reflect your values and wishes – even at its end. Then go out and celebrate life!

Myra Gerson Gilfix was the founding Chair of Healthcare Decision-making Special Interest Group (SIG) for the National Academy of Elder Law Attorneys. This SIG dealt with multiple issues regarding health care, including health care advance directives, durable powers of attorney, DNR orders, biomedical ethics, issues relating to pain relief, dying at home, palliative care, and informed consent.



Hiring Caregivers – Guidelines and Caveats

If you hire someone, you are responsible for many payroll, tax, and labor law requirements. Take care of these issues at the time you hire an individual. Do not wait until the last minute when you may expect your accountant to magically and efficiently prepare tax returns and other documentation.

  • 1. Be sure that the worker is properly classified. See IRS guidelines (opens new window)
  • 2. Obtain a Workers’ Compensation insurance policy. Your homeowners’ insurance agent will likely be able to help you with this. This should cover medical expenses and lost wages if a problem arises. It protects you and it protects the caregiver.
  • 3. Be very careful to keep these tax records separate. Do not intermingle them with family records or records maintained for another business you may have.
  • 4. Carefully budget to pay for employer taxes and to take advantage of tax breaks. See the IRS Employer Guide (opens new window) and the 2014 California Employer's Guide (PDF).
  • 5. This person will almost certainly be your employee, not an independent contractor.
  • 6. Most household employees are “non-exempt.” This means that they have a right to overtime pay when they work over 40 hours in a seven day week. There may be exceptions for live-in workers or companion care.

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Protecting the Residence from Medi-Cal Estate Recovery

Very few of us can afford the cost of nursing home care. It can be $7,000 to $12,000 per month. If we have adequate long-term care insurance, the challenge is substantially addressed. If we do not, we can either pay out of our own pockets – until assets are exhausted – or we can look to the California Medi-Cal program.

To qualify for Medi-Cal when an individual is in a skilled nursing facility, she can have no more than $2,000 in “countable” assets. The residence is an “exempt resource,” which means that its value is not counted in determining eligibility. This means that a person can be in a skilled nursing facility, receive Medi-Cal benefits so that Medi-Cal pays the cost of nursing home care, and still retain ownership of the residence. This is a colossal mistake.

When a Medi-Cal recipient dies, the state of California has a right to get its money back. If the Medi-Cal recipient still owns or has any interest in a residence, the state can assert a claim against the property to recover all Medi-Cal benefits that have been paid. This could be $5,000 or it could be $400,000.

In virtually every situation, the residence can be protected. We typically recommend that the residence be transferred into a very sophisticated irrevocable trust. This transfer does not interfere with Medi-Cal eligibility. The house is therefore protected from the Medi-Cal estate recovery claim. There is also a “stepped-up basis” at the time of death so that the property can then be sold without exposure to capital gains tax.

This is a classic case of “having your cake and eating it too.” It is all a matter of good planning.

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Reminder: The Affordable Care Act Does Nothing to the Cost of Long-Term Care

The Affordable Care Act, also known as “Obama Care,” includes no provisions that address the cost of nursing home care or other aspects of long-term care. We have mentioned this before, but it bears emphasis.

The legislation included the CLASS Act, which was designed to address this specific concern. That part of the legislation was ill conceived and actuarially impossible. Critics mentioned this at the outset. Actuaries in the federal government came to the same conclusion shortly after the Act was passed. Accordingly, it was abandoned.

This means that we maintain the status quo as we think about paying and planning for the cost of skilled nursing care, in particular.

As a client of our office, you know that we can take many steps to be certain that assets are protected and that Medi-Cal eligibility can be achieved, when appropriate.

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