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


Today’s Elder Care / Senior Care Q&A is about Fake Social Security Emails

Social Security

QUESTION:  Would you please provide us with some information about the fake Social
Security emails that many of us are currently receiving?

ANSWER:  The Social Security Administration (SSA) and Federal Trade Commission are warning Americans about a scam email with “Get Protected” in the subject line.

The email describes new features from the Social Security Administration (SSA) that can help taxpayers monitor their credit reports, and know about unauthorized use of their Social Security number.  It even cites the IRS and the official-sounding “S.A.F.E Act 2015.” It sounds real, but it’s all made-up.

If you get an email like that, don’t click on any of the links or open attachments.

It’s a phishing email to get you to click on a scammer’s link. If you do, a scammer can install malware — like viruses and spyware — on your computer. Or, the link might send you to a spoof site — a lookalike website set up by a scammer to trick you into entering your personal information.

Not sure if an email is really from Social Security? Here are a couple of clues. Did the email end up in your junk folder? Email providers use filters to help catch phishing scams and spam from getting into your inbox. And when you hover your cursor over the link, does it really go to a trusted website?

In this fake SSA email, when you hover over the url you’re told to click on, you see the link goes to an unrelated “.com” — instead of the Social Security Administration’s ssa.gov.

Today’s Answer was provided by Sheri R. Abrams, Esq., from the Law Firm of Sheri R. Abrams, Attorney at Law in Oakton, Virginia.  Attorney Abrams 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, #socialsecurity


Today’s Elder Care / Senior Care Q&A is about Medicaid Eligibility

Medicaid

QUESTION:  Special Needs, Third Party and Self Settled Trusts – What’s with all the Names?

ANSWER:  When a person applies for Medicaid eligibility there are many pitfalls that an unsuspecting or unsophisticated applicant can run afoul of. To help them retain the benefit of certain monies that they would normally have access to third parties or the applicant themselves can create a special needs trust to help keep the public benefits and still benefit from the money in the trust. The various different trusts have different legal requirements that must be met to qualify as that type of trusts.

Moreover, different trusts accomplish different goals and yet other types of trusts exist that have nothing to do with Medicaid or other public entitlement program eligibility but help to reduce tax liability. Some trusts accomplish two tasks, such as a third party special needs trusts, which allow seniors to live a relatively modest and respectable life and qualify for Medicaid at the same time. While other types of trusts only satisfy just one legal goal, such as a grantor retained annuity trust, which allows a person to make a gift of an asset that will likely appreciate rather quickly, but incur no gift tax liability. Finally, there are other types of trusts that outlive their utility, such as pooled trusts.

SPECIAL NEEDS TRUSTS – APPLY TO MEDICAID ELIGIBILITY

Special needs trusts are trusts that allow for a person to benefit from public entitlement programs, such as Medicare or Medicaid, without running afoul of statutory asset limits. To help parse through some of the confusion with respect to the different types of trusts as they apply to Medicaid eligibility it is best to understand the various types of trusts. Under the umbrella of special needs trust there are two general distinctions. The distinctions arise as a result of the answer to the question of who had the right to the money immediately prior to its deposit into the trust. For example, a father may leave money to his daughter in a will.

If that money is given to her outright and she then deposits that money into a trust, it is a self-settled trust. If the will leaves the money to the daughter via a trust, it is a third party trust. In either event the daughter benefits from the money. In the case of leaving the money outright, she can use all, some or none of the money for whatever she chooses. In the case of leaving the money to the trust, the trustee acts as a fiduciary and according to the terms of the trust with respect to whether she can use all, some or none of the money as she chooses. As such, if immediately prior to deposit of the funds into the trust, the money can be used solely at the discretion of the beneficiary, it is a self settled trust. If immediately prior to deposit of the funds into the trust, the money cannot be used at the sole discretion of the beneficiary, it is a third party trust.

  • Self settled special needs trust characteristics:
    • Must include a proviso that pays the state the full amount left in the trust at the time that the beneficiary passes away, but no more than what the state is due.
    • Have limitations on what the trustee is permitted to pay for. These conditions vary from state to state and even county to county.
    • The trust must be for the sole benefit of the beneficiary (except a residuary beneficiary which may be entitled to whatever is in the trust after the state is repaid 100 percent of it’s own expenditures).
  • Third party special needs trust characteristics
    • The Medicaid beneficiary may be one of several beneficiaries.
    • Beneficiaries may even include charities.
    • The trust may terminate if the beneficiary improves and no longer needs Medicaid or other public entitlement program (such as SSI).

Expenditures to the beneficiary may reduce the monthly benefit amount depending on various factors.

Today’s Answer was provided by Michael Ettinger, Esq., from the Ettinger Law Firm in Albany, New York.  Mr. Ettinger 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


Today’s Elder Care / Senior Care Q&A for 2/24/2016

 

QUESTION:  What are our rights to refills if Medicare drops coverage of our prescription drugs?

ANSWER:  Medicare prescription drug plans can change which drugs they cover, leaving you without coverage for a drug you need. Or you may switch plans into a plan that doesn’t cover your medication. In these circumstances, Medicare drug plans are required to offer you a 30-day transition supply of the drug you were taking.

All Medicare drug plans, including Medicare Advantage plans with prescription drug coverage and stand-alone drug plans, must offer these transition refills. Plans must provide a 30-day supply (unless a lesser amount is prescribed) of an ongoing medication within the first 90 days of plan membership or within the first 90 days of the new contract year. The plans are also required to provide written notice that you are using your transition supply and explaining what your rights are.

You are entitled to a transition refill when you first enroll in a Part D plan, if you move to a new plan that does not cover your current medication, when your current plan drops your medication or imposes new restrictions on the drug, or when you experience a change in your level of care (e.g., a move from a hospital to a nursing home). The 30-day supply is designed to give you time to either talk to your doctor and find a substitute medication or to request a coverage exception from your current plan. If you ask for a coverage exception, your plan must provide temporary refills until the request has been processed.

Residents in long-term care facilities get additional protections. If you are in a long-term care facility, the plan must cover all the 31-day refill requests you submit in the first 90 days on the plan. After the first 90 days, the plan must offer an emergency 31-day supply if your request for an exception has not been processed.

Today’s Answer was provided by Chad R. Oldham, Esq., from the Oldham Law Firm in Jonesboro, Arkansas.  Mr. Oldham 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

 


Today’s Elder Care / Senior Care Q&A for Monday 2/22/2016

 

QUESTION:  Is it ethical for an Elder Law Attorney to have his fees paid by a client’s daughter, while preparing documents that benefit that daughter?

ANSWER:   This is a very complex issue that is not uncommon for Attorneys practicing in the area of Elder Law. Frequently a large portion of the interaction about an elderly Clients matters are handled by a designated child or third party. This is just the reality of dealing with someone who has failed to plan properly and no longer has the energy or physical ability to actively participate in every step of the process. The payment of legal fees for someone else is also not uncommon. Children frequently pay for the planning and documents for their elderly parents because they are the ones who will be left to deal with the problems.

The question implies possible lack of capacity. First capacity is generally a legal determination not a medical one, whether legal capacity exists depends also upon what they are doing as there are many forms of capacity. Age or a diagnosis of an illness do NOT establish lack of capacity. Each type of legal capacity has set elements which must be met to determine capacity.

The disparity in treatment in types and amounts of bequests is also very common especially with the elderly. Unlike a younger couple who make equal distributions, the elderly frequently change that division. Whether it is because one child has spoken to them in 10 years, one child has been using them as the bank forever, one child loves them but sees them infrequently because they live far away, or one child has lives nearby and does their shopping, takes them to all their doctor visits, helps them deal with matters they no longer wish to do, there are many reasons for an unbalanced division.

In my office, in most types of cases we make it clear from day 1 that we represent the senior not the children. As a matter of course, my office takes precautions to prevent actual or the appearance of undue influence or lack of capacity. So if the senior proposes a radical shift from prior plans, has received a diagnosis of dementia or other illness or shows signs of loss of cognitive ability, or if the family relation is volatile, then we provide letters for the seniors physician to complete where the physician is required to give an opinion on the senior in regard to each of the required elements of capacity. At the time of the first meeting we always will spend a good portion of the meeting with just the senior, the attorney and a third member of the firm’s staff to take down notes and observations. At that point we asks questions designed to find factors suggesting potential undue influence, lack of capacity or a variance or uncertainty in regard to the senior’s distributive plan.

If we are comfortable that the senior has capacity and the plan presented is what the senior desires, then we will go forward with the plan but will also include specific separate written acknowledgements of any actual or appearance of conflict of interest, undue influence or lack of capacity which must be signed by the senior, other relevant family members, and usually of member of my firm.

So while on the face of it your facts appear to suggest some undue influence by your sister I would talk to her if you get along or to your father and discuss your concerns. Perhaps the Attorney is skilled in the area and has taken proper safeguards to make sure the plan is what your father wants and is not being controlled by your sister. If you cannot resolve it directly, then you should immediately retain an experienced Elder Law Attorney to assist you in determining and implementing the appropriate action whether it is an out of Court resolution or to bring an emergency guardianship proceeding to prevent your sister from continuing any undue influence and to have the Court determine any document prepared to be of no effect. If there is evidence indicating that the prior Attorney knowingly assisted your sister in any improper conduct, then file the appropriate complaint before your State Attorney ethics Board.

Today’s Answer was provided by James C. Siebert, Esq., from the Law Office of James C. Siebert & Associates from Arlington Heights, Illinois.  Mr. Siebert is a Partner 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


Today’s Elder Care / Senior Care Q&A for Monday 2/8/2016

QUESTION: Would you please provide us with some information about Reverse Mortgages?

Answered by:
Reverse Mortgage
Beth Miller-Bornemann
Branch Manager & Reverse Mortgage Specialist
The Reverse Mortgage Group, A Branch of American Pacific Mortgage
Pleasant Hill, California
An ElderCare Matters Partner & California State Coordinator

ANSWER: It can be scary: making a major decision concerning your biggest investment, a decision involving a place that means the most to you. Deciding whether or not a reverse mortgage is right for you takes considerable thought and consideration. We hope the following questions and answers help you in this endeavor.

What is a reverse mortgage?

A reverse mortgage is a unique loan that allow homeowner(s) 62 years of age and older to draw on the equity in their home, which is paid to the homeowner(s) in a variety of payout options. One aspect of this loan is that it does not require repayment until the homeowner(s) no longer reside in the residence, the last surviving borrower passes away or does not comply with the loan program obligations such as paying property taxes and insurance, and maintaining the property to FHA guidelines. Regulated by the U.S. Department of Housing and Urban Development (HUD), this federally-insured loan helps those in the senior population meet their financial needs and may ease money worries for greater peace of mind.

Prior to applying for the loan, it is required that you are made aware of the terms and conditions of the loan through sources provided by HUD. Contact the Housing Counseling Clearinghouse at 1-800-569-4287 to obtain the name and telephone number of a HUD-approved counseling agency. You may also contact our office and we will provide you with the list of HUD-approved reverse mortgage counseling agencies.

Is my home eligible for a reverse mortgage?

Homes eligible for a reverse mortgage include single-family homes, detached homes, townhouses, and two-to-four unit properties that are owner-occupied. Condominiums must be FHA-approved.Some manufactured homes are eligible but must meet FHA guidelines. Contact your loan officer for more details on manufactured home eligibility.

What are the differences between a home equity loan and a reverse mortgage?

Reverse mortgages have become more popular because they allow the borrower to receive loan proceeds that do not require immediate repayment as long as you remain in your home as your primary residence, do not sell your home, at least one borrower lives in the home and follow loan guidelines. On the other hand, obtaining a home equity loan (or home equity line of credit or second mortgage) requires that you have sufficient income to cover the debt- plus, you must continue to make monthly principal and interest mortgage payments. With a reverse mortgage you do not make monthly principal and interest payments. Keep in mind you must continue to pay all property related fees, taxes and homeowner’s insurance and maintain the property in good condition.

How much cash can I expect to get?

The cash you can potentially receive is based on the age of the youngest borrower, the current expected interest rate, the mortgage option selected, amount of home equity and the appraised value of the home. For instance an older individual with a higher value home typically will be eligible for more than a younger person with the same home value at the same expected interest rate. How much money you can take in the first year is limited. For more information on distribution limits go here.

What happens if I outlive the loan? Will I have to repay the lender?

No. As long as one of the borrowers on the loan note lives in the home, continues to pay the taxes and insurance and maintains the home in good condition, you will not need to repay the loan. Once the last surviving borrower passes away, the home is sold or the obligations of the loan are not met, the loan must be repaid.

Must my house be paid off for me to qualify for a reverse mortgage?

No. You do not need to pay off your home to qualify. However, the loan proceeds you receive from a reverse mortgage must be used to pay off the existing mortgage or liens (if there is a mortgage balance owing). You will continue to hold title to your home.

Do I have to pay taxes on the cash payments I receive?

The cash or proceeds you receive from a reverse mortgage typically is not subject to individual income taxation. But, since you hold the title to your home, you are still responsible for property taxes, insurance, utilities, fuel, maintenance, and other home-related expenses. Interest on reverse mortgages is not deductible on income tax returns until the loan is paid off in part or whole.We sugest you consult with your tax advisor to provide guidance for your particular situation.

How will this loan affect my estate and how much will be left to my heirs?

Once the last surviving borrower dies, sells your home, or no longer resides there as the primary residence, you or your estate is responsible for repayment of the money you received from the reverse mortgage, plus interest and other fees. Any remaining equity belongs to either you or your heirs. A “non-recourse” clause can prevent either you or your estate from being responsible for more than the value of your home when the loan is repaid.

Should I use an estate planning service to find a reverse mortgage?

HUD advises against using any service that charges a fee (except required HECM counseling) or any service that requests a lender referral fee, to obtain a reverse mortgage. HUD provides this information free of charge and can direct you to HUD-approved housing agencies that offer approved reverse mortgage counseling or additional services that are free or have a minimal cost. There is typically a reverse mortgage (HECM) counseling fee of up to $125. If the borrower cannot afford this fee some counseling agencies will waive the fee for qualified applicants. You can find a HUD-approved housing counseling agency near you by calling 1-800-569-4287 toll free.

How do I receive my payments?

Reverse mortgage payments can be received in one of five ways:

          • Tenure: equal monthly payments
          • Term: equal monthly payments for a fixed period of months as decided by the borrower
          • Line of Credit: payments made in installments or at various times and in amounts dictated by the borrower(s)
          • Modified Tenure: monthly payments with a line of credit
          • Modified Term: monthly payments for a fixed period of months with a line of credit

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, #estateplanning, #estateplanningattorneys, #findestateplanningattorneys


Today’s Elder Care / Senior Care Q&A for Tuesday, 1/12/2016

QUESTION: Should I put all of my assets in joint tenancy?

Answered by:
Joint Tenancy
John J. Campbell, Esq., CELA
Law Offices of John J. Campbell, P.C.
Denver, Colorado
An ElderCare Matters Partner

ANSWER: No! There are times when titling a particular item of property in joint tenancy makes sense.  However, putting all your assets in joint tenancy, especially without proper planning, can be disastrous. Your joint tenant isn’t just a signer, he or she owns an undivided one-half (½) of your assets. Nothing prevents a joint tenant from clearing out all of your bank account; and nothing prevents a creditor of your joint tenant from executing judgments against your joint tenant’s interest in your property. Putting your assets in joint tenancy will not protect them from Medicaid and certainly won’t solve your estate planning issues. If your will says “leave everything to my daughter,” but your assets are in joint tenancy (with right of survivorship) with your son, then your son will take everything when you die; not your daughter.

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, #estateplanning, #estateplanningattorneys, #findestateplanningattorneys


Today’s Elder Care / Senior Care Q&A for Thursday, 1/7/2016

QUESTION: How long is a will valid?

Answered by:
will
Michelle Wilson, Esq.
Wilson Legal, PC
Cumming, Georgia
An ElderCare Matters Partner

ANSWER: The mere passage of time has no effect on the validity of the will. Individuals and families experience life changes every 2 to 5 years. So even though a will remains valid, the individual and family’s needs change. Tax laws and statutes controlling wills and trusts change as well. – Your estate plan – whether it’s a will or trust – should generally be reviewed every 2 to 3 years and more often if you have a major life change such as the birth or adoption of a child, a divorce or marriage, or a significant increase in assets. – Legally, a will does not take effect until the testator dies and the probate court approves the will. Prior to death, a competent testator can amend or revoke an existing will. No notice to or approval of the beneficiaries is required. – You can change your will by writing and signing a new will or signing an amendment to the will called a “codicil”. A codicil is a separate document that explains the changes to the will and you make it effective by using the same formalities as with a will.

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


Today’s Elder Care / Senior Care Q&A for Wednesday, 1/6/2016

QUESTION: What is ONE simple New Year’s Resolution that Everyone should make regarding Estate Planning?

Answered by:
beneficiary designation
Stephen J. Silverberg, Esq., CELA
Law Office of Stephen J. Silverberg
Roslyn Heights, New York
An ElderCare Matters Partner

ANSWER:  One simple New Year’s Resolution that EVERYONE should make regarding Estate Planning is to Check Their Beneficiary Designations.

Many people fail to change the beneficiaries named in their IRA or retirement plans. If you have been divorced and especially if you’ve remarried, don’t give your ex your hard-earned retirement savings. Make sure the beneficiaries on your retirement accounts are up-to-date.

If you’re married, you’ll want to designate your spouse as the primary beneficiary. Federal law requires your surviving spouse to be the primary beneficiary in employer-sponsored retirement plans, like a 401(k), unless your spouse signs a written waiver letting you name someone else as the primary beneficiary. In most cases, spouses will name each other as the primary beneficiaries to their retirement plans. Those funds help maintain the lifestyle they’ve enjoyed in the marriage.

The big tax advantage of doing this is that a spouse can transfer the IRA or plan into his or her name without have to pay any taxes, which will further maintain the plan’s tax deferral status.

Retirement assets that pass between husband and wife at death don’t create a taxable event. So the surviving spouse as the beneficiary is free to use the inherited funds as they want after their spouse’s death. Be aware that your spouse might remarry and thereafter name a new spouse as the primary beneficiary instead of your children.

Unfortunately, many folks think that designating their estate or trust beneficiary of their retirement plans is enough to be safe. Not so. If the estate is the beneficiary, you can set up an expensive legal mess for the people you really intend to be the beneficiaries.

Don’t let a judge make the decision. If you are set on having a trust as a beneficiary, make sure that you speak with your estate planning attorney to be certain that the language in the trust will provide your heirs with the benefits legally available.

To ensure that the right people in your life receive the benefits of your hard work, take the time to review the beneficiary designations on all of your retirement plans, IRAs, investment accounts, insurance policies and any other assets that ask you to name a beneficiary.

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


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