What is a Professional Fiduciary? Today’s Q&A on ElderCareMatters.com

What is a Professional Fiduciary?

Answer:  You probably know an older adult who is all alone. Perhaps this person is single, widowed, or divorced. Maybe he never had children or is estranged from them. Possibly her siblings have all passed away. Whatever the reason, it is often difficult for individuals in this situation to decide who to appoint as their power of attorney or health care surrogate in the event they can’t make decisions for themselves. All too commonly, these folks simply avoid completing appropriate documents and then are stuck if they lose capacity.

In other cases, there is plenty of family who could take over if needed, but they live far away or are fully committed to their own professional and personal responsibilities. Often, family is willing but not able. That is, they would not be a good choice to step into our shoes due to the lack or appropriate skills or the potential for conflict with siblings or other relatives. Perhaps a wife is concerned about her husband being the successor Trustee to their trust because he is a wonderful artist but not interested in finance.

Enter the professional fiduciary. A fiduciary is a person who assumes responsibility for a position of trust. Fiduciaries can serve by court appointment or by private agreement. Court appointed fiduciaries are known as guardians or conservators. In addition, personal representatives of estates are appointed by the Court. Fiduciaries serve by agreement as daily money managers, trustees, representative payees, or as agents under financial or health care powers of attorney. A fiduciary can be an individual or a corporate entity like a bank’s trust department.

Professional fiduciary services range from those that are less restrictive to those that essentially have the professional step into the shoes of an incapacitated person. It is almost always best to start with the least restrictive alternative, allowing the older adult to retain as much independence and decision-making authority as possible.

The least restrictive type of professional fiduciary is the Daily Money Manager (DMM). They handle day-to-day finances and can be retained by the person who needs the assistance or by a family member serving as Agent under a Power of Attorney. DMMs often serve as the eyes, ears, hands and feet of the older adult, allowing them to retain maximum control of their own affairs.

Next along the continuum are professionals who serve as Agent under a Power of Attorney or Health Care Surrogate document, or who serve as Trustee under a trust. These arrangements must be made in writing while an individual has the legal capacity to make such an appointment, even if the services of the fiduciary will not begin until the individual lacks capacity. There are restrictions (which vary by state) regarding who may serve as a professional Agent or Trustee. The responsibility of the fiduciary in these situations is to carry out the instructions in any written documents (e.g., trust, POA, Advance Health Care Directive, etc.) or, where appropriate and allowed by law, to use substituted judgment or the best interest standards to handle the incapacitated person’s affairs.

The most restrictive fiduciary arrangement is guardianship (known as conservatorship in some states). Guardianship is a legal tool to provide management for the financial and/or personal affairs of individuals deemed by the court to be physically or mentally incapacitated. The Guardian or Conservator is legally appointed to manage the incapacitated person (or ward’s) property and/or person and all aspects of the guardianship are overseen by the court.

The best way to ensure that your affairs will be handled the way you prefer is to work with an attorney to draft appropriate documents and then keep them up to date. In the event you find yourself or a loved one in a situation where this hasn’t been done or where those named in the documents are unable or unwilling to serve it is wise to consider engaging a professional fiduciary.

If you need help with this elder care / senior care matter, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find some of America’s TOP Elder Law Attorneys and Estate Planning Attorneys on 2 new websites sponsored by the national ElderCare Matters Alliance – ElderLawAttorneys.us and EstatePlanningAttorneys.us.

ssamotin What is a Professional Fiduciary?  Todays Q&A on ElderCareMatters.com
Sheri Samotin, President
LifeBridge Solutions, LLC
Naples, Florida
An ElderCare Matters Partner

What is Estate Planning? Today’s Q&A on ElderCareMatters.com

What is Estate Planning?

Answer:  When someone passes away, his or her property must somehow pass to another person. In the United States, any competent adult has the right to choose the manner in which his or her assets are distributed after his or her passing. (The main exception to this general rule involves what is called a spousal right of election which disallows the complete disinheritance of a spouse in most states.) A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs as well as to coordinate what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event of death or disability. On the personal side, a good estate plan should include directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you know and trust can do that for you.

If you need help with Estate Planning, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

sbailey What is Estate Planning? Todays Q&A on ElderCareMatters.com
Stephen J. Bailey, Esq.
Bailey Law Firm
Birmingham, Alabama
An ElderCare Matters Partner

Health Insurance Claim Denied!…How to Deal With Surprising Insurance Denials – Today’s Q&A on ElderCareMatters.com

What should we do if our health insurance claim for benefits is denied?

Answer:  It’s safe to say that most insureds have dealt with some type of insurance obstacle, whether it was a billing error that seemed nearly impossible to correct, a medication/procedure/treatment that was unfairly denied, or an outright health insurance denial of benefits. While insurance complications like these can be incredibly frustrating, overwhelming, and financially draining, there is another denial tactic used by insurance companies that is absolutely appalling: the insurance denial AFTER an authorization has been granted, and AFTER the procedure is already completed.

How can this be? How is it possible for an insurance company to deny a procedure, after it has already been approved? There are several reasons for this type of insurance denial, and understanding these reasons can help you to (1) prevent denials, and (2) advocate for your benefits even after the denial.

First, you should understand that procedures (for example, a back surgery for a herniated disc) must be considered “medically necessary” to be covered by your insurance company. The law is clear that medically necessary care must be provided, however, there’s a catch: your insurance company can review your case for medical necessity both before and after a procedure. Thus, it is possible for them to come to a different conclusion after your procedure has been completed, which could mean an insurance denial…and a massive and unexpected bill.

So, what can you do to protect yourself against this type of insurance denial?

1. Get it in writing! Be sure to request a copy of your authorization letter from your insurance company, as well as a confirmation letter from your physician stating that he/she plans to perform the same procedure that has been authorized.

2. Know the Code: It is critical that the procedure code listed on your authorization letter is the same code that is billed by your healthcare provider. If your healthcare provider submits a code that is different from your authorization letter, your claim will probably be denied. Watch out for simple coding errors!

3. Appeal the decision: An insurance denial, whether it is before your procedure or after your procedure, is NOT the final word. The appeal process is complicated, but it is often worth the effort! Pay attention to time limits and deadlines, and if you do not feel well enough to file an appeal, you may want to reach out to an experienced attorney for help.

If you need help with this type of health insurance matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

gkantor Health Insurance Claim Denied!...How to Deal With Surprising Insurance Denials   Todays Q&A on ElderCareMatters.com
Glenn Kantor, Esq.
Kantor & Kantor, LLP
Northridge, California
An ElderCare Matters Partner

Who qualifies for Medicaid? Today’s Q&A on ElderCareMatters.com

Who qualifies for Medicaid?

Answer:   In broad terms, to qualify for Medicaid in Ohio or Kentucky, you must be both medically and financially eligible. Medically, a level of care assessment is administered to determine whether you need assistance with certain daily activities, such as: bathing, grooming, eating, dressing, etc. Financially, your income must be less than your medical costs, and your resources must be at a certain level depending on your financial and marital situation. However, certain assets like your home, car, personal belongings, and a few other exceptions do not count towards resource eligibility. If you fall just above the qualifications for Medicaid but do not have enough to cover all of your medical expenses, Medicaid sometimes will cover the difference in your costs.

Medicaid does not count the value of a home towards Medicaid eligibility; however, a parent, spouse, or dependent, or other family member must remain living in the home, subject to certain restrictions. If the Medicaid participant was the only person living in the home at the time he or she moved into the long-term care facility, then the house must be sold (within 6 months in Kentucky or within 13 months in Ohio) to help recoup some of the medical expenses.

If you need help with this elder care / senior care legal matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

whesch Who qualifies for Medicaid?  Todays Q&A on ElderCareMatters.com
William E. Hesch, Esq., CPA, PFS
William E. Hesch Law Firm, LLC
Cincinnati, Ohio
An ElderCare Matters Partner

Power of Attorney

Would you please provide us with some information about the Power of Attorney?

Answer: 

  1. What is a Power of Attorney?

A Power of Attorney is a document in which you can appoint an agent to make financial transactions on your behalf if you are not present to make these transactions.

  1. What is the difference between a Power of Attorney and an Executor?

A Power of Attorney is in effect only during your lifetime. An Executor takes over the management of your estate upon your death. You name the Executor in your Will.

  1. What is a durable Power of Attorney?

A durable Power of Attorney states that the Power will be in force even if you subsequently become disabled.

  1. How do I appoint an agent?

The Power of Attorney form is a form that must be signed before a Notary Public.

  1. What powers can I give to my agent in the Power of Attorney?

The form lists the areas of authority that you delegate. These include real estate transactions, banking transactions and insurance transactions, to name a few. However, the Power of Attorney does not in itself authorize the agent to make unlimited gifts.

  1. How can I authorize my agent to make gifts?

A Power of Attorney can be personalized to indicate the authority to make gifts and the limits, if any, on this authority.

  1. My bank has its own Power of Attorney Form. Do I need it?

A general Power of Attorney must be honored by banks. However, they sometimes are reluctant to honor them, so if you can sign the bank form, it is often easier for the agent to make transactions later on.

  1. Whom should I appoint as my agent?

You should appoint only someone whom you trust explicitly. You may also appoint two people acting together as an additional safeguard.

  1. If any accounts and house are all jointly held, do I need a Power of Attorney?

The joint accounts should be able to be accessed without the Power, but for real estate, a Power of Attorney will be needed.

10. Can I appoint my agent so that he or she has authority only if I become incapacitated?

The Power of Attorney is not valid for an agent appointed until he or she has signed the Power of Attorney before a Notary Public. You may execute the Power of Attorney but not have your agent sign until you are incapacitated.

If you need help with this elder care / senior care legal matter, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

jrobert Power of Attorney
Joan Lensky Robert, Esq.
Kassoff, Robert & Lerner, LLP
Rockville Centre, New York
An ElderCare Matters Partner

Elder Abuse and Guardianship

Question:  Would you please provide us with some information about elder abuse that is perpetrated by Guardians?

Answer:  It happens often that My Elder Advocate is called in to represent a resident who has placed in a Nursing Home against their will by a court-appointed guardian. In many of these guardianship cases, the elder is being abused or neglected and close family members have been banned from visiting their loved ones. In other cases, nursing homes themselves have been declared guardians and they have used this opportunity to pillage the personal accounts of the elders they are supposedly protecting.

As the number of seniors increase, so too will the number of individuals with cognitive disabilities such as Alzheimer’s disease and dementia and the trend of invoking guardianship for elders with these disabilities. However, guardianship – a legal tool which gives one person or entity the power to make personal and/or property decisions for another – has the potential of harming older adults rather than protecting them if not carefully administered.

There are several major functions that a guardian for an adult carries out:

• Making decisions the person is unable to make for himself or herself
• Exercising rights on behalf of the adult that the adult is unable to exercise for himself or herself
• Acting as an advocate for the adult’s best interests
• Taking action to protect the adult from abuse, neglect, self-neglect, financial exploitation and violation of rights

Over the years, a growing uncaring and unjust judicial system has helped convert guardianship/conservatorship from an appropriate law to one which, if misused, is damaging to the general public. At present, it operates to ensnare the most vulnerable people in a larger and larger trawling net, including those merely physically “incapacitated”! It has become a feeding trough for unethical lawyers and other “fiduciaries” appointed by the courts to protect, but many of whom become nothing more than predators.

Wards of the state lose all self-determination rights, including:
• the right to contract and choose a lawyer;
• the right to control their assets and make financial decisions;
• the right to remain in their own home and protect it from sale;
• the right to protect and enjoy their personal property;
• the right to choose where to live;
• the right to accept or refuse medical treatment, including antipsychotic drugs;
• the right to decide their social environments and contacts;
• the right to assure prompt payment of taxes and liabilities;
• the right to vote;
• the right to drive;
• the right to marry; and
• the right to complain.

The best way to avoid these abuses is to PLAN ahead of time.

If you need help with this or other elder care / senior care matters, you can find thousands of Elder Care Professionals from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find some of America’s TOP Elder Law Attorneys and Estate Planning Attorneys on 2 new websites sponsored by the national ElderCare Matters Alliance – ElderLawAttorneys.us and EstatePlanningAttorneys.us.

jhalpern Elder Abuse and Guardianship
Jack Halpern, Founder and CEO
My Elder Advocate LLC
New York, New York
An ElderCare Matters Partner

Difference between a Will and a Living Will – Today’s Q&A on ElderCareMatters.com

What is the difference between a Will and a Living Will?

Answer:  A will deals with assets, whereas a living will deals with medical care.  Many States have done away with the so-called living will and replaced it with the advance health care directive (AHCD).  An AHCD can accomplish a variety of objectives, from saying who will make health care decisions for you if you cannot communicate with your doctors, to saying under what circumstances conventional health care will be withheld from you so that nature will be allowed to take its course.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

smakuakane Difference between a Will and a Living Will   Todays Q&A on ElderCareMatters.com
Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii
An ElderCare Matters Partner

What Estate Planning Documents should I have? Today’s Q&A on ElderCareMatters.com

Question:  What Estate Planning Documents should I have?

Answer: A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling which takes into account your particular family and financial situation:

A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable” which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid or minimize the expense, delays and publicity associated with probate.

If you have a Living Trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it allows the executor to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.

A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a Guardian as well as alternate Guardians in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death, and after it is admitted by a probate court.

A Durable Power of Attorney for Property allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining and often costs thousands of dollars.

There are generally two types of durable powers of attorney: a present durable power of attorney in which the power is immediately transferred to your agent (also known as your attorney in fact); and a springing or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.

The law allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that health care professionals follow your wishes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, your successor trustees, your family and other people whom you designate.

If you need help with this or other elder care / senior care legal matters, you can find thousands of Elder Law and Estate Planning Attorneys from across America on ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources for Families.

You can also find Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

jruggiero What Estate Planning Documents should I have?  Todays Q&A on ElderCareMatters.com
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
An ElderCare Matters Partner