What does the legal term “Intestacy” mean?

Today’s Elder Care Matters Q&A is about the meaning and consequences of the legal term “Intestacy”

Question:  I’ve read a lot recently about the legal term “Intestacy”.  What exactly does this mean and what are the consequences of this to the elderly and to their families?

Answer:  If a person dies without making a Will he/she dies intestate. Without a Will, a decedent’s property will pass according to the State of Connecticut Intestate Succession Laws. If you are thinking that “intestacy” sounds like some sort of sickness, you may not be too far off the mark. When you see how the state distributes the funds of those who die intestate… you may feel a little sick.

In Connecticut, State statutes provide that if a person dies intestate, and there are children that are the children of the decedent and the spouse, the surviving spouse will receive the first $100,000 plus one half of the balance of the intestate estate. The children will receive the remainder. For example, assume a $500,000 estate: The spouse will receive $300,000 ($100,000 plus half of the remaining $400,000) and the children will receive the remaining $200,000 in equal proportions ($100,000 each). Now let us suppose that there is only one child who is 18 years-old. Even a very mature 18 year-old may have difficulty handling a check for $200,000.

Typically, when most people plan out their estate, they want all of their assets to go to the surviving spouse and not to their children. The thought is that the surviving spouse is in the best position to use the assets wisely for the benefit of the children. In many scenarios it does not make sense to hand a large sum of cash over to a child or young adult. Imagine trying to convince an 18 year-old into investing his/her money in a college education — good luck.

The rules are different if the decedent had children that were not children of the surviving spouse. In this case, the surviving spouse would receive one-half of the intestate estate, and the children would receive the balance. This solution seems to be based in logic. The state wants to make sure that the step-children of the surviving spouse are not taken advantage of by a person who is not related to them by blood. While this plan works in preventing the aforementioned problem, it still puts money into the hands of people who may not be ready to handle it. With a Will based plan you can direct where your assets go, as well as direct appropriate measures to protect your children from the problems that come with receiving a large sum of money outright.

If there are no children of the decedent, but the decedent is survived by a parent or parents, the spouse does not receive the entire intestate estate. In this scenario the surviving spouse will receive the first $100,000 plus three-quarters of the balance, and the parents would receive the balance of the estate. Furthermore, if there are no heirs to the estate, the decedent’s money, property, etc., will escheat to the state and the state will become the owner. It’s probably not a coincidence that you cannot spell escheat without “c-h-e-a-t.”

As you can see from the above sampling from the Connecticut Intestate Succession Statutes, by not planning for the disposition of your property the state has a plan for you. It should be no surprise that control freaks hate the laws of intestacy. It takes control (albeit control that was never exercised) of a person’s hand and vests that control with the State, who then applies cookie cutter solutions for unique situations. The only way to avoid intestacy is to make sure that you have a validly executed Will. Any other plan will fall short.

Today’s Answer was provided by George P. Guertin, Esq. of the law firm of Guertin and Guertin, LLC in North Haven, Connecticut.  Attorney Guertin is a Partner Member in the National ElderCare Matters Alliance.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

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How to Find an Elder Law Attorney

Today’s Elder Care Matters Q&A is about How to Find an Elder Law Attorney

Question:  I’m trying to find an Elder Law Attorney.  What steps should I take to locate a competent, caring attorney who can help me with our family’s Elder Care Matters?

Answer:  Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems.

Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law.

Some of these include:

  • Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
  • Medicaid
  • Medicare claims and appeals
  • Social security and disability claims and appeals
  • Supplemental and long term health insurance issues.
  • Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity.
  • Conservatorships and guardianships
  • Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents
  • Probate
  • Administration and management of trusts and estates
  • Long-term care placements in nursing home and life care communities
  • Nursing home issues including questions of patients’ rights and nursing home quality
  • Elder abuse and fraud recovery cases
  • Housing issues, including discrimination and home equity conversions
  • Age discrimination in employment
  • Retirement, including public and private retirement benefits, survivor benefits and pension benefits
  • Health law
  • Mental health law

Most Elder Law attorneys do not specialize in every one of these areas.

So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list.

For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse’s inheritance.

Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.

Finding an Elder Law attorney

Your first question may be: How do I find an Elder Law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your social worker, your financial advisor, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive and it serves you well to know that you actually need legal assistance before seeking an attorney.

There are many places to find an attorney in your city or state who specializes in problems of the elderly. This Web site, ElderCareMatters.com, includes a searchable directory of attorneys with expertise in a wide range of Elder Care Matters.  In addition to finding Elder Law attorneys near you, this site provides you with substantive, up-to-date information to help you plan for and deal with your family’s elder care matters.

If you know any attorneys ask them for a referral to an elder law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. Such persons are often the best and safest sources of referrals.

Ask Questions First

Ask lots of questions before selecting an Elder Law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.

  • How long has the attorney been in practice?
  • Does his/her practice emphasize a particular area of law?
  • How long has he/she been in this field?
  • What percentage of his/her practice is devoted to elder law?
  • Does he/she have any advanced designations – CELA, Fellow or CAP
  • Is there a fee for the first consultation and if so, how much is it?
  • Given the nature of your problem, what information should you bring with you to the initial consultation?

The answers to your questions will assist you in determining whether that particular attorney has those qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.

Once You Have Found an Attorney

When you have found an appropriate attorney, make an appointment to see him/her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation.  After you have explained your situation, ask:

  • What will it take to resolve it?
  • Are there any alternative courses of action?
  • What are the advantages and disadvantages of each possibility?
  • Who will handle your case?
  • Has that attorney handled matters of this kind in the past?
  • If a trial may be involved, does he/she do trial work? If not, who does the trial work? If so, how many trials has he/she handled?
  • Is that attorney a member of the local bar association, its health advocacy committee, or trust and estates committee?
  • Is that attorney a member of the National Academy of Elder Law Attorneys?
  • How are fees computed?
  • What is his/her estimate of the cost to resolve your problem and how long will it take?

Discussing Fees

There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often he/she bills. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises! If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.

Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.

In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs. Find out if there will be any other incidental costs.

The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.

Get It in Writing

Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. REMEMBER– even if your agreement remains oral and is not put into writing, you have made a contract and are responsible for all charges for work done by the attorney and his/her staff.

A positive and open relationship between attorney and client benefits everyone. The key to getting it is communication. The communication starts with asking the kinds of questions contained in this document. Use the answers to the questions as a guide not only to the attorney’s qualification, but also as a way of determining whether you can comfortably work with this person.

  • If your concerns are given short shrift;
  • if you don’t like the answers to these questions;
  • if you don’t like the attorney’s reaction to being asked all those questions or if you simply do not feel relaxed with this particular person

DO NOT HIRE THAT PERSON. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties which may arise between the two of you. If you take the time to make sure that you are happy right at the beginning you can make this a productive experience for both you and the attorney.

You will thank yourself, and your attorney will thank you.

Today’s Answer was provided by Stephen J. Silverberg, Esq., of  the Law Office of Stephen J. Silverberg in Roslyn Heights, New York.  Attorney Silverberg is a Partner Member in the National ElderCare Matters Alliance.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys, #findmedicaidattorneys


Today’s ElderCare Matters Q&A is about Online Estate Planning Documents

Question:  Would you please provide us with your comments regards the use of online estate planning documents?

Answer:  In estate planning, one size does not fit all. Over the years, I have found that no two families are alike.  Each family has unique issues and online documents typically cannot address those issues.  If your issues are overlooked or ignored, your estate plan will probably not work the way you intended. Most online documents lack the proper customization you need to address these overlooked or ignored issues.

  • For example, when you begin the online document process, the software will ask you for basic information such as who you want to serve as your children’s guardian under your Will. After careful consideration, you determine that you want your sister and her husband (your brother-in-law) to serve as co-guardians of your children under your online Will.  After completing and signing your Will, you think your children will be properly cared for if something happens to you.  However, do you want your brother-in-law raising your children if he and your sister get divorced or if your sister passes away?  As a named co-guardian, your brother-in-law can present a strong case to the court that he should raise your children pursuant to the Will.  Although it was your intention for him to raise your children with your sister, the Will does not address what happens upon death or divorce.  An estate planning attorney should be able to recognize this co-guardian issue and could implement the appropriate contingency in your Will that would remove him as guardian upon your sister’s death or divorce.  If you use online documents to name your children’s guardian, you might be unaware of this issue or unable to customize your documents to address that concern.
  • Furthermore, a lack of customization with online documents might cause the inclusion of wrong provisions in your documents. One essential estate planning document is the financial power of attorney (POA).  This document allows your designated agent to make financial decisions for you on your behalf.  A POA usually contains large amounts of standard boilerplate provisions that can be confusing to some people and may not be applicable to your situation.  For example, buried in your online POA might be a provision that allows your agent to make unlimited gifts to anyone.  For some, unlimited gifting might be necessary.  For others, unlimited gifting simply gives your agent a wonderful opportunity to deplete all of your assets.  Unfortunately, elder abuse is very common and it’s usually done by those who are appointed as POA.

Online document providers are not attorneys and do not counsel and recommend what provisions you should have in your documents.  Online providers do provide an option for you to consult with an attorney.  Will that attorney practice near you and be available to meet with you face to face?  Will you be able to select an attorney that has the experience in estate planning that you need?

In conclusion, those who use online estate planning documents might think that estate planning is as simple as filling names into blanks.  In reality, estate planning is complicated and needs to be customized to your specific needs even in the simplest of situations.  Simply filling in blanks can cause chaos for your loved ones down the road.  Online estate planning websites want you to believe that you have peace of mind that your affairs will be in order because ignorance is bliss! It has been often said that every attorney who represent himself or herself is a fool.

Today’s Answer was provided by William E. Hesch, Esq., of The William E. Hesch Law Firm in Cincinnati, Ohio.  Attorney Hesch is a Partner Member in the National ElderCare Matters Alliance.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys, #findmedicaidattorneys

 


Today’s ElderCare Matters Q&A Focuses on Whether Living Longer is Worth It If You’re Not Living Healthy

Question:  Is Living Longer Worth It If You’re Not Living Healthy?

Answer:  While more people are celebrating triple-digit birthdays than ever before, many have to take their insulin shot before enjoying a piece of birthday cake. Older adults are the largest consumer of medications with more than 40 percent of people over age 65 taking five or more prescriptions. While new medical interventions have significantly improved longevity, in some cases Western medicine may be a crutch for living with chronic diseases rather than making lifestyle changes.

According to seven papers published recently by the Lancet, people worldwide are living longer but sicker. Advances in medical science and drastic improvements in sanitation have decreased the amount of premature deaths and allowed people to live into old age—but at what cost?

The report is the first expansive, global look at life expectancy and health threats involving more than 480 researchers in 50 countries. Based on the data they gathered from surveys, censuses, and studies, the greatest global contributors to the health burden are chronic disease, injuries, mental health conditions, and joint and bone diseases. To give perspective, take a look at some of the eye-opening statistics presented in the report:

  • In people aged 15-49, diabetes is a bigger killer in Africa than in Western Europe (8.8 deaths vs. 1 death per 100,000).
  • Globally, heart disease and stroke remain the top killers.
  • Lung cancer moved to the 5th cause of death globally, while other cancers including those of the stomach, liver, and colon are also in the top 20.

This report begs the question, “Is living longer worth it if you are not living healthy?” Preventative medicine is a growing trend in which diet, exercise, and lifestyle play a major role. Instead of treating medical conditions when they arise, incorporating a healthy lifestyle may decrease your risk of health complications and increase your quality of life as you age.

With about four out of five seniors affected by a chronic condition such as heart disease, hypertension, and diabetes, decreased quality of life is not the only consequence—medical care is extremely costly. According to the American Hospital Association, Medicare costs are skyrocketing. “People with chronic disease are more likely to be hospitalized than those without, and the resources required for each episode of care are greater. This translates into higher spending overall.”

Healthy Living does not just add years to your life, but adds life to your years. In the end, your health is your choice. Choose wisely.

If you are looking for solutions to help you with weight loss, energy & performance, healthy aging and wealth creation, then please contact us so that we may guide you along your path to a healthier, happier YOU.


Today’s Elder Care Matters Q&A is about Transferring Title of Home for Medicaid Purposes

My mother is 83 with dementia. It’s to the point that she needs nursing home care. I have been her caretaker for the last 4 years. The home we live in is in both of our names. We want to transfer into my name only. She will have to go on Medicaid.  May I have your advice please as to the proper way of handling this?

Answer: You need to meet immediately with an Elder Law Attorney who is knowledgeable about Medicaid in your state. First it is necessary to address the issue of authority to transfer the home. Does your mother have mental capacity to sign legal documents? It is important to understand that capacity is a legal issue, not a medical one. Further, there are multiple forms of capacity, most commonly testamentary capacity and contractual capacity. A medical diagnosis is not determinative of capacity. There are set rules for determining capacity. However it is important to understand that capacity can fluctuate from day to day or based upon the hour of the day. Individuals with dementia can suffer from something called sundowners, whereby they may have capacity early in the morning, but lack it by the end of the day. So, the first thing you need to do is work with an Elder Law Attorney to determine if your mother currently has legal capacity. If your mother currently has capacity, she can sign the deed without the need for a power of attorney, though you certainly want Durable Powers of Attorney for Health and Durable Powers of Attorney for Property to be able to assist her.

Assuming that she lacks capacity, but has Powers of Attorney in place, the next question is whether the Durable Power of Attorney grants the agent authority to gift or transfer property and if you are the named agent whether it also allows for self-dealing in certain circumstances. Most people do not understand that all Durable Powers of Attorney are not the same. While most States have a statutory form, which is what many people use without modification, the Durable Power of Attorney statutes are designed to allow significant modifications to the extent and nature of the powers granted. Many people and Attorneys believe that a standard form covers everything, frequently relying on the apparent broad authority granted on the face of the document. Unfortunately that is not true. As an Elder Law Attorney the Durable Powers of Attorney I prepare for my Clients contain substantial modifications which allow the agent to take specific actions, including steps to transfer property to a child caregiver under Medicaid.

It is also essential to understand that Medicaid, unlike Medicare, is not a matter of right. You must understand that the burden of proof is on you to establish that you meet all the criteria to qualify. Unfortunately while the laws are published, the State agencies in charge of Medicaid frequently do not publish or advise you what exactly is required to establish your rights. In most States there has been active efforts to reduce the number of people on Medicaid and whether it has been done by changing the statutes or by modifying the procedural requirements, both written and unwritten, large numbers of qualified individuals that have had their applications denied because of a naïve belief that since they meet the general legal standards that the State will automatically approve them. Jointly owning the property with your Mother does not mean that you can keep the house and protect your mother. It is imperative that you retain an experienced Elder Law Attorney immediately if you seek to protect your claim to the home while still getting your mother qualified for Medicaid payment for her care. Good Luck.

Illinois Medicaid Attorney


Today’s Answer was provided by James C. Siebert, Esq., of The Law Office of James C. Siebert & Associates in Arlington Heights, Illinois.  Attorney Siebert is a
Partner Member in the National ElderCare Matters Alliance.

 

 

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findmedicaidplanningattorneys, #findmedicaidattorneys


Today’s Elder Care Matters Q&A is about the VA Aid and Attendance Pension

How much disability is required for a Claimant to receive the VA Aid and Attendance Pension?

ANSWER:  In order to receive the VA Aid and Attendance Pension, the claimant must show that he or she requires the “aid and attendance” of another person in order to perform some of the basic activities of daily living. The medical evidence must be provided by a physician. Additionally, if the claimant resides in a facility, then the facility must also provide a letter stating that the individual resides in the facility because of the need for assistance with the activities of daily living. The VA defines the need for aid and attendance as:

  1. Requiring the aid of another person to perform at least two activities of daily living, such as grooming, transferring, eating, bathing, dressing or toileting;
  2. Being blind or nearly blind; or
  3. Being a patient in a nursing home.

One of the great beauties of the VA pension is that it can be used for any type of chronic care providers including: in home paid caregivers, personal care homes or assisted living facilities, adult day care or skilled nursing facilities.

VA Aid & Attendance Pension
Today’s Answer was provided by Kevin Pillion, Esq., of Life Planning Law Firm in Sarasota, Florida.  Attorney Pillion is a
Partner Member in the National ElderCare Matters Alliance.

 

 

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with VA Aid and Attendance Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys, #findvaaccreditedattorneys


Today’s Elder Care Matters Q&A is about the role of a Patient Advocate

QUESTION:  What Is a Patient Advocate?

ANSWER: What happens if you or a family member is too injured or ill to make medical decisions for themselves? In Michigan, you can designate someone to be your “patient advocate” in the event that you lose the mental capacity to make healthcare decisions for yourself. You can designate any adult over the age of 18, but it is important to choose this person wisely.

Whether or not you have a patient advocate is up to you, but it can be a useful component of an overall estate plan. If you choose not to have a patient advocate you may have difficulty with the course of your medical care. Sometimes a spouse or child will have a say, but by law, even close family members do not have the right to make your decisions for you without the proper patient advocate designation or health care power of attorney. Instead, the family may have to file a proceeding in probate court to appoint a guardianship, which could result in decisions that are not what you would have preferred had you planned ahead.

How Do I Start?

Meet with your elder law and estate planning attorney, who can talk with you about choosing a patient advocate. Your attorney will help you through the process, which will include drafting an advance directive expressing your wishes, along with a health care power of attorney.

There are some requirements that must be met to validly designate a patient advocate. You must be of sound mind when you choose your patient advocate. You must have two witnesses sign, and the person you choose to be your patient advocate must also sign to accept the responsibility.

What Can I Have My Patient Advocate Do on My Behalf?

Your patient advocate can be empowered to make healthcare decisions that are in your best interest for you if you are too injured or ill to do so for yourself. This can include giving informed consent to medical treatment, refusing consent, and arrange for care or treatment in a hospital or nursing home. There are also optional abilities you can give such as arranging and deciding on mental health treatment, arranging for organ or body donation after you pass away, and withdrawing or withholding life support (except, under Michigan law, if you are pregnant).

In an optional section, you can make clear your “Statement of Wishes” that details the type of care you would like to receive and what your preferences are.

When a person has not designated a proper patient advocate, or otherwise made clear his or her end-of-life wishes, the law requires that life support is maintained even if that’s not what you would have wanted.

Steps Once You Have Designated a Patient Advocate

Keep the signed original for yourself in a safe place so that you can take it with you and present it to individuals who may need to see it.

Make copies and either mail or bring them to:

  • The Peace of Mind Registry, a state-wide registry that holds records of these designations
  • Your primary care provider
  • Close family members who would need to know who your designated patient advocate is and how to contact them if necessary.
  • The hospitals you visit or the hospital in closest proximity to your residence.
  • Any other medical facilities such as nursing homes or clinics where you regularly receive medical care or anticipate needing to.

Patient Advocate

Today’s Answer was provided by Don L. Rosenberg, Attorney and Counselor, of the Law Firm Barron, Rosenberg, Mayoras & Mayoras in Troy, Michigan.  Attorney Rosenberg is a Partner Member in the National ElderCare Matters Alliance.

 

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys


Today’s Elder Care / Senior Care Q&A is about Avoiding Taxes with a Revocable Living Trust

QUESTION:  Will a Revocable Living Trust Help to Avoid Taxes?

revocable living trust


Today’s Answer was provided by Scott A. Makuakane, Esq., CFP, of Est8Planning Counsel LLLC in Honolulu, Hawaii.  Attorney Makuakane is a
Partner Member in the National ElderCare Matters Alliance.

ANSWER:  In and of themselves, trusts do not avoid taxes, but they help to carry out good tax planning. As far as income taxes go, revocable living trusts are “tax neutral.” During your lifetime, your trust will not need to file its own income tax returns. The taxpayer identification number for your trust is your Social Security Number, and you simply report all trust income on your individual Federal and State income tax returns.

Whether you have a trust or not, your estate may be subject to estate tax and generation-skipping transfer tax. The estate tax is a tax on your failure to spend your last nickel by the same time as you exhale your last breath. If you are a U.S. resident, the law gives you an exclusion from the Federal estate tax (we like to call it your estate tax “coupon”) that enables you to shelter a certain amount of assets from the tax. The aptly-named generation-skipping transfer tax (“GST”) is piled on top of any applicable gift or estate taxes on transfers to individuals who are two or more generations younger than you and can result in a lot more going to the IRS than goes to your loved ones.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys


Today’s Elder Care / Senior Care Q&A is about Elder Care Warning Signs

Elder Care warning signs

QUESTION:  What are some Warning Signs that my parents may need help with their Elder Care?

ANSWER:  Below are some warning signs that your loved one may need help with their Elder Care:

  • Deteriorating hygiene or appearance
  • Erratic or inappropriate behavior changes
  • Increasing confusion or disorientation
  • Depression with tearfulness, loss of appetite
  • Signs of insufficient nutrition, dehydration, or weight loss
  • Inability to manage money
  • Friends or neighbors express concern
  • Inability to manage medications
  • Unclean or unsafe living environment
  • Falling, lack of mobility, wandering, or significant vision or hearing difficulties
  • Wears same clothing more than two days in a row
  • Difficulty getting out of bed and preparing for the day
  • Noted changes in short term memory loss

Today’s Answer was provided by Lauren Spiglanin, Founder of Family Connect Care in Rancho Palos Verdes, California.   Ms. Spiglanin is a Partner Member in the national ElderCare Matters Alliance.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals

 


Today’s Elder Care / Senior Care Q&A is about Long Term Care Facilities and Resident Rights

Long Term Care Facilities

QUESTION:   What are the rights of the elderly and those with disabilities in Long Term Care Facilities?

ANSWER:  Below is a summary of the rights of the elderly and those with disabilities in South Carolina Long Term Care Facilities:

Overview of Resident Rights in Long Term Care Facilities

The most important and comprehensive rights for residents of long term care facilities or nursing homes are contained in the Nursing Home Reform Act (NHRA) of 1987. In addition to an expansion of each resident’s personal rights, the NHRA requires that a review of a facility’s compliance with residents’ rights be included in the annual standard survey used to determine overall performance and compliance with federal regulations. It also requires facilities to protect and promote the rights of each resident.

The NHRA defines several categories of residents’ rights:

  • general rights;
  • transfer and discharge rights;
  • admissions policy; 
  • access and visitation rights;
  • equal access to quality car (Medicaid discrimination); and
  • protection of residents’ funds.

The rights provisions include freedom of choice, freedom from restraints, privacy, confidentiality, grievances, participation in resident and family groups as well as other activities, and accommodation of individual needs. A resident also has the right to examine the results of the annual survey of a particular nursing home. These rights must be given to a resident orally and in writing at the time of admission. The following is a brief outline of the more important of these rights.

ADMISSION RIGHTS: 

Who can and should be admitted to a Nursing Home. One of the most difficult decisions faced by families is placing a loved one in a nursing home. Unfortunately, in addition to the personal conflicts surrounding this question there are a number of legal and financial issues to be considered as well. If an individual will be paying for his or her stay in the facility on a private pay basis, there is generally no legal impairment to the individual entering the nursing home. However, if the individual’s stay will be paid for by Medicare or Medicaid there are specific medical requirements that must be met. One way for families to ensure that institutionalization is appropriate is to obtain a thorough assessment of the functional capacity of the individual. Once a clear picture of the individuals needs has been assessed it can be determined what level of care is required. In South Carolina, a functional capacity assessment can be obtained through Community Long Term Care (CLTC), a division of the Department of Health and Human Services. There is currently no charge for this assessment. However, the state assessment may be inappropriate for your client. The state assessment is designed to determine medical eligibility for Medicaid. Unfortunately, just because an individual does not medically qualify for Medicaid does not mean he or she would not benefit from a nursing home setting. In cases where he goal of the assessment is to determine the needs of the individual rather than his Medicaid eligibility use of a private care manager is probably more appropriate.

The Admission Process. The nursing home admission process in South Carolina is far from organized. In general individuals needing a nursing home bed are relegated to making a visit to each facility, obtaining an application, filling out the application, and being place on a waiting list for a bed, as there are no centralized filing procedures. This can be extremely frustrating when a family member is in a hospital and their Medicare days are running out. Frequently the family will be caught between a hospital demanding the patient be removed and the nursing homes saying no beds are available. This is particularly where the individual will be a Medicaid resident.

The Admission Agreement. Virtually all nursing homes utilize some type of admission agreement with their residents. This is the resident’s contract with the nursing home and generally sets forth the obligations of the nursing home and those of the resident. While most of these contracts have become very standard in their language, there are a number of areas of particular concern that the attorney should look for in assessing a nursing home admission agreement. In particular, many nursing homes place a requirement in their admission agreements that a person other than the resident guarantee payment of the facility’s fees and charges. If the facility is a Medicare or Medicaid certified facility, this practice is expressly prohibited by the Nursing Home Reform Act of 1987 for admissions after October 1, 1990. If the admission agreement contains such a guarantee requirement, the resident or his representative should demand that it be stricken from the agreement prior to signing the agreement.

Other questionable or illegal clauses frequently found in admission agreements are as follows are as follows: (1) attempts to restrict Medicaid availability, (2) waivers of liability for negligence, and (3) restrictions on medical or nursing care based on source of pay.

Admission rights under the Nursing Home Reform Act. Under the Nursing Home Reform Act of 1987, with respect to admission practices, Medicare or Medicaid certified facilities must: i. not require residents or potential residents to waive their rights to benefits under the Medicare or Medicaid program; ii. not require oral or written assurances that potential residents are not eligible for or will not apply for benefits under the Medicare or Medicaid programs; iii. provide oral and written information about how to apply for Medicaid and Medicare benefits, how to use such benefits, and how to obtain a refund for previous payments covered by benefits; iv. not require a third party guarantee of payment as a condition of admission, to expedite admission, or as a condition of continued stay in the facility; v. in the case of a Medicaid recipient, not charge, solicit, accept or receive in addition to any amount otherwise required to be paid under the state Medicaid plan any gift, money, donation or other consideration as a precondition of admitting or expediting the admission of the individual to the facility or as a requirement for the individuals continued stay in the facility. Finally, both federal and state law requires that every new resident of a nursing home or other long term care facility receive a copy of the federal or state “Residents Bill of Rights.”

Medicaid Discrimination in Admission. While in most cases discrimination by a Medicare or Medicaid certified facility against Medicaid-eligible residents is prohibited, the admission process is an exception to that rule. The NHRA requires Medicare and Medicaid certified facilities to establish and maintain identical policies and procedures regarding transfer, discharge, and the provision of services for all residents regardless of source of payment. Unfortunately nothing in the Act expressly prohibits unfair admission practices based on source of payment. While a handful of states expressly prohibit such discrimination, South Carolina is not one of those states. Consequently in South Carolina, Medicaid eligible individuals are frequently refused admission or put on Medicaid only waiting lists even though beds are available. This allows the facility to save the beds for private pay or Medicare residents.

DISCHARGE RIGHTS: 

When a facility seeks to involuntarily discharge or transfer a resident, its request is often an admission that the facility cannot or does not wish to meet the resident’s needs. From the facility’s standpoint, the resident may have become too difficult to handle or may require too much care or the resident’s family may ask too many questions or may make too many complaints. While the facility demands for discharge are very stressful and difficult for a resident and his family to deal with, there are both federal and state laws that assist the resident in resisting an improper discharge. The most useful of these laws is the Nursing Home Reform Act.

The Nursing Home Reform Act.   The Nursing Home Reform Act (the NHRA or the Act) establishes requirements for facilities, the US Secretary of Health and the States, in a number of areas including resident discharge rights.

The NHRA applies to all facilities which participate in either Medicare or Medicaid program. For covered facilities, the act prohibits the facility from transferring or discharging residents except under certain limited circumstances. In general these circumstances are as follows:

(A) the transfer or discharge is necessary to meet the resident’s welfare and the resident’s welfare cannot be met in the facility;
(B) the transfer or discharge is appropriate because the resident’s
health has improved sufficiently so the resident no longer needs the services provided by the facility;
(C) the safety of individuals in the facility is endangered;
(D) the health of individuals in the facility would otherwise be endangered;
(E) the resident has failed, after reasonable and appropriate notice, to pay (or to have paid on the residents behalf) for a stay at the facility; or
(F) the facility ceases to operate.

The NHRA requires that the basis of the transfer or discharge be documented in the resident’s clinical record. Under Medicare, all reasons other than the closing of the facility must be documented in the clinical record. In the case of a Medicaid resident only reasons A through D must be so documented.

Before transferring or discharging a resident, the Act requires the facility to notify the resident and a family member of the resident or his legal representative of the reason for transfer or discharge. The notice must state that the resident has the right to appeal the transfer of discharge to a designated state agency, and must include the name, mailing address, and telephone number of the State Long Term Care Ombudsman. Further for residents with developmental difficulties or mental illness additional information may be required. As a general rule, the facility must provide 30 days notice of the transfer or discharge of a resident, but there are some exceptions to this rule.

Under exigent circumstances, federal law permits earlier discharge for any reason other than nonpayment and the facility ceasing to operate. South Carolina law also requires thirty days notice before discharge of a resident. However, under South Carolina law the thirty days is required unless the health, safety or welfare of the other residents in the facility would be endangered.

Finally, a facility must provide discharge planning, and sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

IF A NURSING HOME IS THREATENING TO INVOLUNTARILY DISCHARGE A FAMILY MEMBER YOU SHOULD CONTACT AN EXEPERIENCED ATTORNEY AS SOON AS POSSIBLE.  YOUR TIME TO SEEK A FAIR HEARING IS LIMITED, AND YOU SHOULD NOT GO IT ALONE.

What is Transfer or Discharge?   Discharge is defined as movement to a non-institutional setting when the discharging facility ceases to be legally responsible for the care of the resident. Transfer is movement from one institution to another.

FAIR HEARING REQUIREMENTS: 

Freedom of Choice.   The NHRA grants to nursing home residents certain rights to be involved in decisions affecting their care and who will provide their care. These rights are as follows:

i.    The Right to choose a personal attending physician. While all residents have this right for reasons of economics and practicality most choose to use the facility’s physician. An ancillary question is whether the resident can choose his own pharmacy. The answer to this question is unclear.

ii.     The right to be fully informed in advance about care and treatment.

iii.    The right to be fully informed in advance of any changes in the resident’s plan of care and treatment.

iv.     The right to participate in planning care and treatment.

Privacy.     The resident has a right to privacy with regards to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups. This is one of the most violated patient rights. The facility should arrange for adequate privacy when administering treatment. Staff should knock before entering a resident’s room. Staff should not discuss a residents care or treatment with other residents or unauthorized persons.

Confidentiality.     A resident has a right to confidentiality of personal and clinical records.

Grievances.     With respect to a residents complaints, he or she has the following rights:

i. The right to voice grievances with respect to care or treatment without fear of discrimination or reprisal.

ii. The right to prompt efforts by the facility to resolve the resident’s grievances, including those concerning the behavior of other residents.

iii. The right to written information concerning State agencies which can be contacted if grievances cannot be resolved.

Accommodation of Needs.    The resident has the right to receive services with reasonable accommodation of individual needs, except where the health and safety of the resident or other residents would be endangered. Although not included in the residents’ rights provisions, several sections of the NHRA underscore the obligation of the facility to provide individualized care, treatment and attention.

Participation in Resident and Family Groups.     The nursing home must protect and promote the right of the residents to organize and participate in resident groups, and the right of the resident’s family to meet in the facility with families of other residents in the facility. Further, the facility may not interfere with a resident’s religious, social, and community activities that do not interfere with the rights of other residents.

Access and Visitation. A nursing facility must permit the following with respect to visitation and access to a resident.

i.    Permit immediate access to any resident by any representative of the U.S Department of Health and Human Services, any representative of the state, or the resident’s individual physician.

ii.    Permit immediate access to a resident, subject to the resident’s consent, by his or her immediate family or other relatives.

iii.    Subject to reasonable restrictions, permit immediate access to the resident by others who are visiting with the resident’s consent.

Equal Access to Quality Care.     A nursing facility must establish and maintain identical policies and practices regarding the transfer, discharge, and provision of services required under the state plan for all individuals regardless of source of payment.

Incompetent Residents. The rights of an incompetent resident devolve upon and may be exercised by his guardian, conservator or power of attorney.

Right to Inspect Survey Results. The nursing facility must protect and promote the right of a resident to examine, upon reasonable request, the results of the most recent survey of the facility conducted by a federal or state agency having jurisdiction over the facility.

Freedom From Abuse and Restraints.     Each resident has the right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s symptoms

i.     Physical restraints can be used only to ensure the physical safety of the resident or other residents and must be prescribed by a physician. The order must specify how long and circumstances under which the restraints are to be used.

ii.     Psychopharmacologic drugs (drugs that have an altering effect on the mind) can only be administered on the order of a physician as a part of a written drug plan of each resident receiving such drugs.

Today’s Answer was provided by Mitchell C. Payne, Esq., from the Law Firm of Payne, Black & Pickelsimer, LLC in Rock Hill, South Carolina.  Attorney Payne is a Partner Member in the national ElderCare Matters Alliance.

21 “Mobile Friendly” Elder Care / Senior Care Directories

If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.

#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findelderlawattorneys


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