Hawaii Elder Law Attorney Suggests Alternative Approach to Yesterday’s Q&A: Mediation

Question:  “My mother is 91 years old and has Dementia/Alzheimer’s. She does not know how to read or write, but recently she apparently granted Power of Attorney for her finances to my elder sibling. This was done in secrecy and did not take the rest of the family into consideration. Now my sibling has taken over my mother’s house and her bank funds and has placed my mother in a nursing home where she is kept overmedicated.  I’m concerned about how something like this could have happened.  Is there anything I and the rest of my family can do now to have this Legal Directive reversed?

Answer:  This is a heart-wrenching scenario that is played out in countless families every day across America.  There is a legal approach to the problem that could be expensive, could worsen your current family dynamics, and could take longer than your 91-year-old mother has left.  It would involve securing medical opinions concerning your mother’s current capacity to sign legal documents (and, as precisely as they can tell you, when she lost legal capacity), appointment of a legal representative for your mother, and unwinding the asset transfers and other things your sibling has done.  The term used for the legal representative may be guardian or it may be conservator, depending on where you live.  You will need an experienced attorney in your State to guide you through the process and represent you in court.

Before you go down that road, consider bringing all of your siblings and other interested family members together to talk about what has been done and why.  The answers to those questions may surprise you.  More importantly, the family may find a way to move forward in a unified manner that meets your mother’s needs and at the same time preserves (or mends) family harmony.  You may find that a trained mediator can help your family members explain their positions and understand each other’s positions.  The mediator could be a pastor, a counselor, a lawyer, or a trusted family member or friend who may or may not fit into any of those categories.  If no one comes to mind, there may be a Neighborhood Justice Center or similar service in your area that can provide mediation services.  This is an alternative worth exploring, and, if it is unsuccessful, it will not prevent you from pursuing the kind of legal approach outlined above.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
State Coordinator of the national ElderCare Matters Alliance, Hawaii chapter

Elder Law Attorney Discusses Competency & Powers of Attorney

Question:  “My mother is 91 years old and has Dementia/Alzheimer’s. She does not know how to read or write, but recently she apparently granted Power of Attorney for her finances to my elder sibling. This was done in secrecy and did not take the rest of the family into consideration. Now my sibling has taken over my mother’s house and her bank funds and has placed my mother in a nursing home where she is kept overmedicated.  I am concerned about how something like this could have happened.  Is there anything I and the rest of my family can do now to have this Legal Directive reversed?”

Answer:   Your family is clearly in a difficult situation.  There are several ways to attack this problematic situation, but neither way will be quick and easy, and there is no way to deal with the situation without involving your local probate court.

Your question seems to suggest your mother may not have been fully mentally competent when she executed the Power of Attorney.  If so, the grant of authority was not legally valid.  Unfortunately, her bank will not likely take action simply on the word of you or your other family members alone.  Rather, you will need to petition the probate court to consider the facts and circumstances and ask that the court renders a judicial decision to that effect.  A bank or the holders of other assets will not likely simply take the word of you or your family members that your mother could not have validly give the authority to your elder sibling, but a bank would have to respect the legal opinion of the probate court.  The bank would then have to remove your elder sibling’s authority over your mother’s assets.

Another approach to take would be to concede the Power of Attorney was valid but to demonstrate that your elder sibling is now breaching his or her fiduciary duties and should be formally removed by the probate court.

In either of the above situations, the probate court would likely seek to formally appoint someone to look after your mother’s personal and/or financial self-interest.  When a court makes such an appointment, the appointee is known as a “conservator.”  Among the downsides to a conservatorship, there may be tedious reporting requirements put on the conservator and the costs of court proceedings must be borne by the assets and income of the “ward,” the person for whom the conservator has been appointed.  On the plus side, since the activities of conservators are under the ongoing oversight of the probate court, banks will readily accept the authority of a court-appointed conservator whereas it may take more convincing to persuade a bank to honor the authority of an agent appointed privately under a durable power of attorney.

Your predicament illustrates the wisdom of getting one’s estate planning arrangements in order long before there are physical or cognitive health issues.  Instead of a document being placed in front of a vulnerable family elderly parent in secret, the process of documenting and formalizing a parent’s wishes can be done in a way that leaves little  question about who the parent would like to act for them and what their instructions are to the family members they have named.  The plan can and should include the sort of “checks and balances” to make sure no individual appointee can act in their own self-interest, at odds with the wishes of the parent.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Bloomfield, Connecticut  06002
Premium Member of the national ElderCare Matters Alliance, Connecticut chapter

Elder Law Attorney Discusses LTC Payment Options

Question:  What are the financial options that are available to us for paying for long-term care for our elderly parents? For example, will Medicare and Medicaid pay for these elder care expenses?

Answer:  There are three (3) main options for paying for long-term care – out of pocket (private pay), long-term care insurance, and government programs such as Medicare (very limited), Medicaid (income and asset dependent) and Veterans Administration (income and asset dependent).  Which options are available to help your parents will depend on their situation.

Long-term care refers to medical and non-medical care for a person who has a chronic illness or disability.  The need for long-term care, also known as custodial care, occurs when you need care but you are unlikely to get any better. For example, as we age our bodies simply start to wear out and fall apart.  This may result in limited mobility, loss of independence and the need for assistance with everyday activities such as dressing, bathing and eating.  Or we may need help with everyday activities due to diminished cognitive abilities, neurological conditions, confusion or dementia.  Things that used to come naturally, such as turning off the stove when you are done, or remembering that you turned the stove on to make lunch are suddenly gone.  The need for long-term care may also arise due to a sudden medical incident such as a heart attack or stroke, which even after the patient reaches “full recovery,” they may still be left with a reduced ability to care for themselves.

Most often long-term care is non-medical in nature and assists with support services such as activities of daily living like dressing, bathing, and using the bathroom.  Long-term care can be provided at home, in the community, in assisted living or in nursing homes.

Difference Between Medicare and Medicaid –  There is a very large difference between Medicare and Medicaid and people confuse the two all the time. 

Medicare is a federally funded entitlement program to provide health insurance primarily to Americans over the age of 65 and many individuals with disabilities.  There are several parts to Medicare:  Part A covers hospital bills, post-hospital nursing home stays and home health care, Part B covers medical insurance and pays most basic doctor and lab costs, and some out-patient medical services, including medical equipment and supplies, home health care, and physical therapy, Part C is called Medicare Advantage and is the Medicare HMO program, and Part D covers some of the costs of prescription medication.

Medicaid on the other hand is a federal program, administered by each State, that pays for certain health services and nursing home care for older people with low incomes and limited assets.  It also pays for some long-term care services at home and in the community.  Medicaid covers a broader range of services and people than Medicare, including children, pregnant women, parents of eligible children, seniors and individuals with disabilities.  Its greatest difference from Medicare is that Medicaid is based on need and financial resources.  In order to qualify a person must fall into a covered group and meet the financial needs test.

Medicare generally doesn’t pay for long-term care.  Medicare also doesn’t pay for help with activities of daily living or other care that most people can do themselves or that can be provided by family or non-medical personnel.  Medicare only covers a small amount of the nursing home care provided in the United States, and only under very limited circumstances, making the hope of Medicare paying the bill quite difficult. 

Medicare pays for 20 days of full coverage if you discharged to a skilled nursing facility after being admitted for at least three days in the hospital, so long as you are receiving skilled care as opposed to custodial care.  If you still need skilled care after the first 20 days, you can get up to 80 additional days of partial coverage from Medicare.  When the Medicare coverage ceases, you will have to pay out-of-pocket unless you have private long-term care insurance or qualify for Medicaid (“Medi-Cal” in California) benefits.

If you need “custodial care,” rather than care associated with an injury or illness Medicare won’t pay a dime.  Custodial care is defined by Medicare as help with activities of daily living, like dressing, bathing, going to the bathroom and eating.  This is the kind of care that can be safely and reasonably provided by people without professional skills or training – like your family.  Custodial care is also called “long-term care” and is the type of care that most people will need as they approach the end of their lives.

 If you need custodial care there are a couple of alternatives to pay for it.  First, you could purchase long-term care insurance – provided you are healthy enough and can afford the premiums.  Many policies can also be used to pay for assisted living and in-home care, as well as skilled nursing care.  Second, you can pay for everything directly out of your pocket.  Third, if you qualify, Medicaid will pay for your care under certain circumstances.  Finally, Veteran’s and widow(er)s of veterans may receive a Special Monthly Pension called “Aid & Attendance.” This benefit is based on a person’s assets and income.  If approved for Aid & Attendance, the person will receive additional monthly income to help pay for the cost of health care.

Consulting with an experienced elder law attorney can help you determine the options available to help your parents get and pay for the care they need.  It is important that you look at and evaluate all of the options.  Assessing the options to pay for long-term care before the need for care arises or before a crisis occurs will ensure the greatest flexibility.  Even with good advance planning, making long-term care decisions can be difficult.

Hope this helps.

Heather R. Chubb, Esq.
The Chubb Law Firm
Fair Oaks, California  95628
Member of the national ElderCare Matters Alliance, California chapter

Elder Law Attorney responds to family’s question about Elder Care Planning

Question:   Help.  I don’t know where to start and have no idea what to do in order to get my family’s “house in order” in regards to planning for our elder care needs.  My husband and I are in our mid 60s, are in good health, own our home and have some retirement savings.  Although we consider ourselves fairly intelligent, we are wrestling with how to proceed with our elder care planning.  Can you provide us with some guidance?

Answer:  The purpose of ElderCareMatters.com is to provide families like yours with the necessary Guidance to help them with their elder care matters.  So you have started in the right place.  My recommendation is that you first go to the link on ElderCareMatters.com that allows you to Find an Expert in elder law near YOU.  This is certainly a good place to start.  Even if you should find that ElderCareMatters.com does not have an expert in your particular area of the country, you should find someone within your geographical area.  You could call the attorney listed and if he/she cannot be of help, then they should be able to refer you to someone locally that can be of assistance to you.  An attorney working in the area of elder law normally knows some, if not all, of the other elder law professionals in your area. 

You may ask why I suggest starting with an attorney first.  It has been my experience that many people searching for elder care answers do not have the proper legal paperwork in place to unlock the door to proper elder care planning.  They either do not have the correct legal documents or their documents are old and out of date with their state’s laws.  Simply put – the lack of any one of the following documents could sink your elder care planning: a current durable power of attorney over property, a current designation of health care surrogate or sometimes called a durable power of attorney for health care, a living will and the proper Last Will and Testament.   

If you don’t see an attorney listed in your area of the country, then you might try getting a recommendation from other elder law professionals who are listed on ElderCareMatters.com.  The network of elder law professionals listed on ElderCareMatters.com is quite widespread so finding the proper help should not be that difficult to achieve. 

Other sources that are available would be your local phone book or the internet.  You might have to try several searches to make a connection with the proper planner.  In addition, your local bar association or state bar association will have information about attorneys that do elder care planning.   You may want to check with family and friends that have already gone through their own elder care planning or they know of someone that has had the need for such planning.  Lastly, you may want to check with senior groups in your area including assisted living facilities and nursing homes. 

I wish you well in your search for help with your elder care planning.  Most people don’t look that far ahead in their planning and react in the case of any emergency, especially elder care matters.  With elder laws always changing, it is best to plan ahead and take advantage of the current laws in place.

Ivan Michael Tucker, Attorney at Law
Altamonte Springs, Florida
Member of the national ElderCare Matters Alliance, Florida chapter


Elder Law Attorney Provides Update on Class Action Suit Against Medicare’s 100 Day Rule

Question:  In yesterday’s Q&A, which dealt with Medicare’s 100 day limit for reimbursement of nursing home rehabilitation, Attorney Siebert said that there was a class action suit just settled for the 100 day rule which if a person was not making progress under skilled care that Medicare would cease to cover that cost and the patient would be moved to non-skilled care. As of what date did this go into effect since my mom had this issue and was moved to non-skilled November 29 or 30, 2012 and I paid the balance of November and all of December in advance.

Answer:  The effective date for the rule will actually be retroactive. The initial proposed settlement was filed in federal District Court on October 16, 2012. On November 20, Chief Judge Christina Reiss of the District of Vermont signed an order preliminarily approving the settlement agreement. By December 10, 2012, notice of settlement was posted on the websites of numerous organizations, including the seven national organizations that served as plaintiffs in the case, which will alert advocates and beneficiaries to the terms of the settlement. Class members will be able to file written objections to the settlement. The court will hold a Fairness Hearing on January 24, 2013 “to determine whether the settlement agreement is fair, reasonable and adequate,” after which it is hoped that the judge will issue an order permanently approving the settlement agreement.

When the judge approves the proposed agreement, CMS will revise the Medicare Benefit Policy Manual and other Medicare Manuals to correct suggestions that Medicare coverage is dependent on a beneficiary “improving.” New policy provisions will state that skilled nursing and therapy services necessary to maintain a person’s condition can be covered by Medicare. The settlement clarifies that Medicare will cover nursing or therapy services that require the skills of a qualified professional in the skilled nursing facility, home health, or outpatient setting. Examples of such skilled services include: physical therapy to maintain the patient’s condition or to slow deterioration, and nursing services for wounds that are not healing.

Once finalized, the Settlement Agreement will provide a review under the proper standard for all claims that are denied on the basis of the Improvement Standard after January 18, 2011 (the date the Jimmo case was filed).  The determination of whether you have a legitimate basis for appeal and the procedures for appealing your denial go well beyond the limited scope of this answer.   A good resource for learning more about appeals of Medicare denials can be found on the website of the Center for Medicare Advocacy which has published several self-help packets for Medicare appeals.  http://www.medicareadvocacy.org/take-action/self-help-packets-for-medicare-appeals/

James C. Siebert, Attorney at Law
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Premium Member of the national ElderCare Matters Alliance, Illinois chapter


Elder Law Attorney Answers Question about Nursing Home Rehabilitative Care

Question:  “My father-in-law is currently in a nursing home. He’s been in and out of various facilities resulting from two failed back surgeries, followed by several years of over-prescribed pain medicines. In the last 12 months he’s been in a rapid decline of health; that’s why we put him into care facilities. The current facility is moving him out this week because he isn’t making any improvements and his medical insurance will be cut off. As we try to find him new care, we’re discovering that his current medicinal intake is too complicated for other facilities. Can you recommend a course of action for us? His wife comes to visit him every day. We’d like to keep him nearby if possible. Many thanks in advance for your help on this.”

Answer:  Most nursing homes participate in either or both the Medicare and Medicaid programs, and from your description it sounds as if your father-in-law was in the Nursing Home under Medicare or a Medicare replacement coverage.  First, if that is the case you must understand that Medicare will not pay indefinitely for long term care. Generally, Medicare will only pay for up to a maximum of 100 days of rehabilitative services in a nursing facility after the patient has spent 3 midnights in a hospital.  Once the 100 days are up, or previously when it was determined that the patient was making no improvement, then the care is no longer consider rehabilitative but is then considered long term care and Medicare stopped paying even if the time was well short of the 100 days.  Medicare does not pay for long term care.  Unless your father-in-law has long term care insurance, it is unlikely that any private insurance would pay for long term care.  That means no matter what you do in the short run, you must plan for your father-in-laws long term care and how you are going to pay for it.

In the short term, if Medicare was paying for your father-in-law’s rehabilitation in the nursing home, you might be able to get additional time in the facility based upon a recent change in Medicare policy agreed to by the Federal Government as part of a settlement of a class action lawsuit.  The prior standard allowed Medicare to stop paying once the patient had ceased to make any improvement.  The change provides that if the patient, your father-in-law, stops making improvement however is still in need of a skilled level of care, Medicare will continue to pay up to the maximum of 100 days.

After the 100 days or whenever your father-in-law is discharged, a facility will have to be found that can accommodate him.  Fortunately for you, you can generally make the current nursing facility find and arrange for your father-in-laws admission to an appropriate facility.  In response to reports of widespread neglect and abuse in nursing homes, Congress enacted legislation in 1987 requiring nursing homes participating in Medicare and Medicaid to comply with certain quality of care rules. This law, known as the Nursing Home Reform Act, says that nursing homes “must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care.

You may only be transferred or discharged to a safe and secure place that can meet your needs. It doesn’t matter what the reason is for the transfer or discharge. It doesn’t matter how long you were in the nursing home. It doesn’t matter if it is an emergency. Your transfer or discharge must be safe and secure.

Pursuant to federal law, prior to involuntarily discharging a resident, a facility is required to have a “post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment.”  Generally, a transfer of a resident is permitted only “when adequate alternative placement is available. In order to determine whether “adequate alternative placement” is available, a facility must prepare a discharge plan before involuntarily discharging a resident. The discharge plan must take the resident’s medical needs into account. Further, any discharge plan must include involvement of the recipient, family or authorized representative in the placement process with recognition of their choices. In addition, the Nursing Home Reform Act requires that a nursing facility “must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

Once an appropriate facility is found, a determination has to be made as how your father-in-law will pay for his care. If he does not have long term care insurance, and otherwise has insufficient assets, he can apply for Medicaid, which is a joint federal and state program which pays for long term care for people who cannot afford it themselves. I would strongly recommend that you get assistance in determining if your father-in-law qualifies for Medicaid as well as assistance in the actual application process. I would recommend you locate an Elder Law Attorney in your area, and then arrange a consultation with the Elder Law Attorney.

One excellent source to find Elder Law Attorneys near YOU is ElderCareMatters.com –  America’s Directory of Elder Care / Senior Care Resources for Baby Boomers and their Aging Parents.

Hope this helps.

James C. Siebert, Esq.
The Law Office of James C. Siebert & Associates
Arlington Heights, Illinois
Member of the national ElderCare Matters Alliance, Illinois chapter

Today’s Q&A on ElderCareMatters.com is about locating Medicaid-Approved Facilities

Question:  “How do you find out which elder care facilities are Medicaid approved? Is there a list? Are assisted living facilities Medicaid approved or just nursing homes?”

Answer:  There are several ways to find a Medicaid approved facility in your area.  I will have to be general rather than specific because this answer should apply to every state rather than to just one state.

First option:  Call a local nursing home and ask if their facility is Medicaid approved.  If not, ask them for the names of any that are Medicaid approved facilities.

Second option:  Check with any of your local social service agencies.

Third option:  Check with your local hospitals as they refer people to Medicaid facilities each and every day.

Fourth option:  Check with the local office of Family Services, the Department of Children and Families or the Welfare agency in your state.

Fifth option:  Check with your clergy as they visit their parishioners usually on a weekly or bi-weekly schedule.

Sixth option:  Check with your friends that may be going through the same search as you are or they have already made their search.

Seventh option:  Check with your family physician or the local medical society.

Eighth option:  Check with your local assisted living facilities.  Many assisted living facilities are connected to Medicaid approved facilities.

Ninth option:  Check with your local health department.

Tenth option:  Check your local yellow page directory under assisted living facilities, Medicaid Nursing Homes, Nursing Homes, etc.

Eleventh option:  Check on the internet for assisted living facilities, Medicaid Nursing Homes, Nursing Homes, etc. 

The above list is probably not exhaustive, but it should give you enough information that should allow you to find what you are looking for with only one or two phone calls.

Hope this helps.

Michael Tucker, Attorney at Law
Altamonte Springs, Florida
Member of the national ElderCare Matters Alliance, Florida chapter

Today’s Q&A on ElderCareMatters.com is about a Medicare issue

Question:  Which is best and why: to purchase a Medicare supplement or to enroll in a Medicare advantage plan?

Answer:  From a financial perspective, there are some very good reasons to consider a Medicare Advantage plan (also called Medicare Part C).  It is important to understand that, when you choose to be insured under a Medicare Advantage plan, you are effectively choosing a private insurance plan and “opting out” of Original Medicare while you are under that plan.  A Medicare Advantage plan is a “blanket plan” that covers many of the benefits that would otherwise require you to purchase multiple components under Original Medicare, including Medicare Part A (Hospital Insurance), Medicare Part B (Medical Insurance), a separate Medicare Supplement plan (Medigap), and a separate Medicare Part D (Prescription Drug) Plan.  There are both pros and cons when deciding to choose a Medicare Advantage plan versus keeping Original Medicare along with a Medicare Supplement. 

On the “pro” side, perhaps the biggest reason that most seniors choose a Medicare Advantage is that they offer a savings in out of pocket costs for both medical care and prescription drugs, in exchange for your agreement to use their specific list of in-network providers.  Some also provide additional benefits such as covering the monthly fee for health club membership.  Medicare Advantage plans may charge an additional premium, typically in the range of $20 to $60 per month.  Each plan also has unique co-pays for medical office visits and prescription drugs.  Co-pays can vary significantly with each plan, so shop carefully, keeping in mind the types of physicians you normally see and the specific drugs you normally take.

On the “con” side, most Medicare Advantage plans are HMO type plans, where you do not have the choice to see any doctor that you wish.   You must  go to the doctors, hospitals, and other medical providers on the plan’s list.    If you need to see a specialist, many require a referral from your Primary Care Physician in order to be seen by a specialist.  This means that you must choose a Primary Care Physician that will be the Medicare Advantage plan’s “gatekeeper” to decide when your care merits a referral to a specialist.  Some Medicare Advantage plans are PPO type plans, offering a wider selection of providers and greater ease when seeking a specialist.

Keep in mind that, when switching from one option to the other, there are specific windows that you must keep in mind.  If you wish to change from Original Medicare to a Medicare Advantage plan, you must do so within the open enrollment period from October 15 through December 7, with changes taking effect the following January 1.  If you wish to change from Medicare Advantage back to Original Medicare with a Supplement, you must do so within the period from January 1 through February 14.

When making a decision, the most important issue to consider is the type of medical care that you anticipate that you will need.  If you have few medical issues, then a Medicare Advantage plan may serve you well and save you money.  However, many Geriatric Care Managers suggest that, as seniors age and their medical needs become more complex, that they consider the greater flexibility offered by Original Medicare to choose the medical providers that will best meet their specific needs.


Marty Seigel, CSA
Advocare Elder Care Management
Delray Beach, Florida
Member of the national ElderCare Matters Alliance, Florida chapter

Today’s Q&A on ElderCareMatters.com is about Medicaid Exempt Transfers

Question:  My mom is 85. I am 62 and blind. Is it true that elderly parents can transfer all assets to blind children, of any age, and immediately qualify for Medicaid? My mom does not need Medicaid now. I am just thinking ahead. There might be a time when she needs to enter a nursing home or needs nursing assistance. I want her to be able to protect her assets. She lives in a co-op type apartment now. Is there a way to set up something legally so that her apartment and meager savings are protected?

Answer:  The rules for Medicaid qualification vary from State to State, so you will need to consult an elder law attorney in your jurisdiction for a definitive answer on how assets may be transferred by a parent to a child without affecting eligibility.  However, as a general proposition, the answer to your question is that there are certain “exempt transfers” allowed by law whereby a parent can transfer a residence to a “caretaker child” (one who has resided in the home with the parent for at least two years and has provided actual assistance to the parent with such things as meal preparation and taking the parent to doctor’s appointments), and the law also allows special transfers using trusts for the benefit of blind, disabled, or minor children.  If done correctly, these kinds of transfers do not impact the parent’s Medicaid eligibility.  If a transfer does not satisfy all of the applicable rules, however, the transferor may be ineligible for Medicaid benefits for roughly the amount of time that the value of the transferred assets could have paid for nursing home care.  In any event, a transfer made more than five years before a Medicaid application is filed by or on behalf of the transferor will not impact the transferor’s Medicaid eligibility.  An additional complicating factor that your question raises is how assets may be transferred for your benefit without affecting your current or future eligibility for means-based programs.  That is where “special needs” or “supplemental needs” trusts may come into play.  The best time to begin planning for Medicaid qualification is well before there is a need for nursing home services, so your question is timely.  Your best move right now would be to consult an elder law attorney in your State for help in navigating the complex rules of Medicaid qualification as well as the rules pertaining to special needs trusts.

ElderCareMatters.com can help you find an Elder Law Attorney near you who can help you plan for and/or deal with your family’s elder care matters.

Scott A. Makuakane, Esq., CFP
Est8Planning Counsel LLLC
Honolulu, Hawaii  96813
Member of the national ElderCare Matters Alliance, Hawaii chapter

Today’s Q&A on ElderCareMatters.com deals with compensation for family caregivers

Question:  I have been taking care of my Mother since 2004. She has Alzheimer’s Disease. I do not currently have a job because I am with her 24 hours a day. Is there any compensation that I could receive for all my time and effort?

Answer:  We certainly recognize the value of the time you have put in to taking care of your mother in the years since 2004.   While your devotion to your mother is admirable, there unfortunately is no way for you to receive compensation for the time and effort you put in the past.  In the elder care context, there are two (2) scenarios that come to mind where is it wise for the senior to make ongoing payments to the caregiving family member and for those payments to be thoroughly documented. 

One situation is in the context of an application for Medicaid benefits under Title IX.   Under current Medicaid law, when an application is made to the state benefit that agency is obligated to scrutinize the applicant’s financial history over the previous five (5) years.  When money has been transferred from the senior to a family member, the benefit agencies will have a default assumption that the transfers were uncompensated, meaning the senior did not receive fair market value in return.  If that was the case, there may be a Medicaid denial or a burdensome “penalty period” during which the agency will not pay for the urgently needed benefits.  In contrast, if it can be demonstrated the senior was in fact paying the family member for providing urgently needed care, then the payments were not gifts and there is no problem with Medicaid eligibility.  That can be a way for the caregiver to be paid for their time and efforts in providing for their senior loved one.  In this context, payments to the family member can partially be thought of as a “defensive” tactic, to ensure that payments to the family member do not create Medicaid eligibility problems down the road. 

When the senior is to make payments to the family member caregiver for care to be provided, it is crucial that the arrangement be formally documented.  A document commonly referred to as a “Care Contract” should be prepared and it should spell out all the duties and responsibilities of the caregiver and the amount and terms of the compensation by the senior.  While the senior and family members quite understandably are used to dealing with each other in a thoroughly informal manner, it is crucial for them to keep in mind a central goal to document the caregiver / care recipient relationship in a manner that will withstand third party scrutiny by the state’s Medicaid agency or other similar third parties.  Thus, it is well worth the investment for the family to consult a competent elder law attorney to work with the family to draft the document. 

The other situation is when the senior is eligible and applies for benefits through the United States Department of Veterans Affairs (VA).  When the VA pays non-service connected benefits to a living veteran or to the living widow or widower of a deceased veteran, that benefit is structured as a reimbursement for recurring medical expenses.  When properly documented, payments to a family caregiver will be accepted as recurring medical expense for which a reimbursement may be paid, just like reimbursement for health insurance premiums or similar.  So, in that situation the benefit recipient can receive a greater benefit amount and effectively the caregiver is compensated for his or her time.

Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
Bloomfield, Connecticut
Member of the ElderCare Matters Panel of Experts

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