5 Things You Need to Know About Health Care Documents

5 Things You Need to Know About
Health Care Documents

Written By:
whesch 5 Things You Need to Know About Health Care Documents
William E. Hesch, Esq., CPA, PFS
William E. Hesch Law Firm, LLC
Cincinnati, Ohio
An ElderCare Matters Partner

The Supreme Court has maintained that a competent person always has the constitutional right to accept or refuse medical treatment. However, when you are unable to speak for yourself, who do you want to speak for you? And what kind of limitations do you want to place on their authority? Here are five important things you need to keep in mind about advance health care directives:

  1. Know What Documents Do What. By executing a Health Care Power of Attorney, you appoint someone to make health care decisions for you if you are physically or mentally incompetent. A Living Will, on the other hand, is a directive from you to your doctors letting them know whether you would like to receive artificially supplied life-sustaining treatment. Since these documents originate at the state level, there are inevitably statutory variations among states that can affect how and even if your wishes are implemented. In Ohio, there are separate documents for a Health Care Power of Attorney and a Living Will. In Kentucky, however, there is a single document called “Living Will Directive and Health Care Surrogate Designation.” While you appoint someone to make decisions for you, that person may or may not be authorized to make medical treatment directions or authorizations about food and water.
  2. Choose Your Health Care Decision Makers Carefully. Before executing any health care document, discuss your wishes with your designee to ensure that they understand your wishes and that they have no ethical objections to your decision. You will want to ensure that your designee will act as you have directed and not according to their own ethical opinions.
  3. Give Copies of Any Documents to Your Primary Care Physician. Always give a copy of your documents to your primary care physician to be placed in your permanent medical record. Not only does this ensure the availability of the document, but also it allows you to discuss the practical consequences of the documents with your doctor so you can make a full and informed decision.
  4. Update it Frequently. Like all legal documents, you should ensure that they are kept up to speed with the circumstances of your life. The older a document is, the more likely it is to be challenged as not reflective of your current wishes. A recent document, on the other hand, can be clear and convincing evidence of your wishes. I recommend that everyone execute their desired advance health care directives every few years.
  5. Cross Your T’s and Dot Your I’s. Although most states have developed forms for their health care directives, you should always consult with an attorney to make sure the document complies with wishes. If you have any specific religious beliefs on blood transfusions, organ transplants, or other medical treatments, you should consult with a clergyman and make your beliefs evident in your documents. Also, be wary of forms given to you at the hospital as some hospitals have modified the forms prescribed by statute. You should also remember that if a hospital refuses to honor your advance health directive, you are allowed to be transported to another facility where your wishes will be respected.

If you need help with Estate Planning or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

The Rules of Estate Administration

The Rules of Estate Administration

Written By:
mcorliss The Rules of Estate Administration
Marie A. Corliss, Esq.
Corliss Law Group
Cortlandt Manor, New York
An ElderCare Matters Partner

Probate is the process by which a deceased person’s property, known as the “estate,” is passed to his or her heirs and legatees (people named in the will). The entire process, supervised by the probate court, usually takes about a year. However, substantial distributions from the estate can be made in the interim.

The emotional trauma brought on by the death of a close family member often is accompanied by bewilderment about the financial and legal steps the survivors must take. The spouse who passed away may have handled all of the couple’s finances. Or perhaps a child must begin taking care of probating an estate about which he or she knows little. And this task may come on top of commitments to family and work that can’t be set aside. Finally, the estate itself may be in disarray or scattered among many accounts, which is not unusual with a generation that saw banks collapse during the Depression.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor or personal representative in the deceased family member’s will. Matters can be a bit more complicated in the absence of a will, because it may not be clear who has the responsibility of carrying out these steps.

First, secure the tangible property. This means anything you can touch, such as silverware, dishes, furniture, or artwork. You will need to determine accurate values of each piece of property, which may require appraisals, and then distribute the property as the deceased directed. If property is passed around to family members before you have the opportunity to take an inventory, this will become a difficult, if not impossible, task. Of course, this does not apply to gifts the deceased may have made during life, which will not be part of his or her estate.

Second, take your time. You do not need to take any other steps immediately. While bills do need to be paid, they can wait a month or two without adverse repercussions. It’s more important that you and your family have time to grieve. Financial matters can wait. (One exception: Social Security should be notified within a month of death. If checks are issued following death, you could be in for a battle).

When you’re ready, but not a day sooner, meet with an attorney to review the steps necessary to administer the deceased’s estate. Bring as much information as possible about finances, taxes and debts. Don’t worry about putting the papers in order first; the lawyer will have experience in organizing and understanding confusing financial statements.

The rules of administering estates differ from state to state. In general, they include the following steps:

1. Filing the will and petition at the probate court in order to be appointed executor or personal representative. In the absence of a will, heirs must petition the court to be appointed “administrator” of the estate.

2. Marshaling, or collecting, the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an “inventory,” with the probate court. It’s generally best to consolidate all the estate funds to the extent possible. Bills and bequests should be paid from a single checking account, either one you establish or one set up by your attorney, so that you can keep track of all expenditures.

3. Paying bills and taxes. If an estate tax return is needed—generally if the estate exceeds $1 million in value—it must be filed within nine months of the date of death. If you miss this deadline and the estate is taxable, severe penalties and interest may apply. If you do not have all the information available in time, you can file for an extension and pay your best estimate of the tax due.

4. Filing tax returns. You must also file a final income tax return for the decedent and, if the estate holds any assets and earns interest or dividends, an income tax return for the estate. If the estate does earn income during the administration process, it will have to obtain its own tax identification number in order to keep track of such earnings.

5. Distributing property to the heirs and legatees. Generally, executors do not pay out all of the estate assets until the period runs out for creditors to make claims, which can be as long as a year after the date of death. But once the executor understands the estate and the likely claims, he or she can distribute most of the assets, retaining a reserve for unanticipated claims and the costs of closing out the estate.

6. Filing a final account. The executor must file an account with the probate court listing any income to the estate since the date of death and all expenses and estate distributions. Once the court approves this final account, the executor can distribute whatever is left in the closing reserve, and finish his or her work.

Some of these steps can be eliminated by avoiding probate through joint ownership or trusts. But whoever is left in charge still has to pay all debts, file tax returns, and distribute the property to the rightful heirs. You can make it easier for your heirs by keeping good records of your assets and liabilities. This will shorten the process and reduce the legal bill.

If you need help with Estate Administration or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Make sure your Loved Ones know where your Estate Planning Documents are located – This week’s Elder Care Article on ElderCareMatters.com

Make sure your Loved Ones know where your
Estate Planning Documents are located

Written By:
jruggiero Make sure your Loved Ones know where your Estate Planning Documents are located   This weeks Elder Care Article on ElderCareMatters.com
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
An ElderCare Matters Partner

For most people, finally establishing an estate plan is a big step that they have undertaken after years of delay. A second step is making decisions regarding the executor, trustees, beneficiaries, funeral costs and debt, and a third step is actually completing the will. There is, however, a fourth step that is often skipped: placing the original will and other critical documents in a place where it can be found when it is needed.

As far as wills are concerned, this step is more important than you might think, for two reasons:

  1. If your will can’t be found upon your death then, legally, you will have passed away intestate, i.e. without a will.
  2. If your loved ones can only locate a photocopy of your will, chances are the photocopy will be ruled invalid by the courts. This is because the courts assume that, if an original will can’t be located, the willmaker destroyed it with the intention of revoking it.

Options for Storing the Original Copy of Your Will

Because an original will is usually needed by the probate court, it makes sense to store it in a strategic location. Common locations recommended by estate planning attorneys include:

  • A fireproof safe or lock box
  • Stored at the local probate court, if such service is provided.
  • A safety deposit box in a bank

There are advantages to each choice. For many, a fireproof safe is simplest: it’s in the home, doesn’t need to leave the house and can be altered and replaced with maximum convenience. The probate court makes sense because it is the place where the last will and testament may end up when you pass away. A safety deposit box also makes sense, especially if you already have one for which you’re paying. Just make sure that your executor can access it.

By making sure that your original will is safe and can be found when needed, you don’t just ensure that it can be used when the allocation of your assets and debt occurs. You also ensure that disputes, confusion and disappointment don’t occur years after your death; while uncommon, in some cases, by the time the will has been discovered, the assets of the decedent have long been distributed according to intestacy laws and not the decedent’s will. Intestacy laws are essentially the “default will” that the state establishes for individuals who do not have their own estate plan.

You’ve taken the trouble to protect your assets and loved ones by creating an estate plan. Don’t leave its discovery to chance. Ensure that your executor or trustee can easily and reliably find it when it comes time to put it into effect.

If you need help with this or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

The Importance of Legal Advice When Planning YOUR Estate – This Week’s Elder Care Article on ElderCareMatters.com

The Importance of Legal Advice When Planning YOUR Estate
Written By:
klyman The Importance of Legal Advice When Planning YOUR Estate   This Weeks Elder Care Article on ElderCareMatters.com
Keith R. Lyman, Esq.
Frazer Ryan Goldberg & Arnold LLP
Phoenix, Arizona
An ElderCare Matters Partner

It’s tempting to look only at price when contemplating preparation of your estate plan. With on-line document production and document preparers charging far less than attorneys, you may easily be persuaded to save some money and avoid the attorney.

Remember your goal: You want to develop an estate plan, not just a document. Will the cheaper document achieve your objectives? Is an attorney’s experience and advice of any value to you? How will you know?

Ask yourself these questions:

  • How do you know that your documents are properly drafted?
  • Will a Last Will and Testament avoid Probate?
  • Are living trusts just for the wealthy?
  • Do you understand the dangers of naming your trust as a beneficiary on your qualified retirement account?
  • Do you know that there are many types of financial powers of attorney?
  • Do you know that many financial institutions may refuse to honor your power of attorney?
  • Do you know that a health care power of attorney may still require a guardianship or conservatorship down the road without proper wording?
  • Do you know the difference between a power of attorney and a trust?
  • Do you know that only a Will can effectively create a special needs trust for a spouse?

The list goes on. There are a lot of different tools in the estate planner’s toolbox. Tools may be cheap, but you have to understand how to use them.

Don’t underestimate the value of an attorney’s advice. After all, that is what you are paying for, and need.

If you need help with this or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Ten Steps for Adult Children Caregivers to Follow After a Holiday Visit

Ten Steps for Adult Children Caregivers to Follow After a Holiday Visit

Written By:
ssamotin Ten Steps for Adult Children Caregivers to Follow After a Holiday Visit
Sheri Samotin, President
LifeBridge Solutions, LLC
Marina Del Rey, California
An ElderCare Matters Partner

Many families take advantage of the holidays to enjoy time together. While these visits can range from fun to extremely stressful for all sorts of reasons, one common outcome is that adult children who haven’t seen their aging parents in a while to come away with feelings of surprise, fear, shock and even anger. Aging parents often do an excellent job of “hiding” their declining physical or cognitive abilities from their kids, especially when those kids live far away. They do this for a range of reasons – from not wanting their children “in their business” to denial that there is a decline or even the cognitive inability to recognize it. If you’ve recently returned from your holiday visit and find yourself in a bit of panic, here are ten steps to follow to get on track.

  1. Assess the situation – Do you have a crisis on your hands? An urgent situation? Or an ongoing chronic decline? Your answer to this very important question will determine how quickly you must act and make decisions, and how much collaboration you can afford. The more urgent the situation, the less time you will have to engage in a process to allow your parent and/or siblings lots of input. If you find yourself in this place, make sure that you are in fact the person with the legal authority and responsibility to be making decisions. If you aren’t, then it is imperative that you immediately get the person who is to get involved. If no such person has been named then this should occur immediately if your parent has the cognitive capacity to do so. If not, you may have to seek a court-appointed guardianship or conservatorship..
  2. Prioritize the needs – First make a long list of everything you can think of that needs to be done, fixed, solved, or otherwise handled. Then, prioritize this list according to what needs to be accomplished right now and what can wait. It is also important to distinguish between wants and needs. Finally consider those things that are best taken care of “on the scene” and which things can be handled from afar.
  3. Remember that safety must come first – As you are prioritizing, don’t forget that your job as an adult child is to make sure that your parent stays safe. Anything that is now, or could become, a safety issue should be near the top of your list.
  4. Make every effort to prioritize your parent’s independence – While you are at it, remember that whenever you can make a choice or recommendation that prioritizes your parent’s independence you will generally get less resistance when it comes time to implement. The most difficult aspect of aging for many older adults is the real or perceived loss of independence, so if you can keep your parent safe and as independent as possible it is almost always the better choice.
  5. Get organized– Now that you have made a prioritized list of all of the current and impending needs, get that list organized. At a minimum, make a sheet with three columns. In the first column, list the needs in order from highest to lowest priority. In the second column, write down your proposed solution if you know it (and leave it blank if you don’t). In the third column, write down the next step you need to take in order to work toward that solution.
  6. Figure out what resources you have available – Add a column to your list and fill in the resources you already know that your family has. For example, if the issue is grocery shopping and your parent already has a trusted housekeeper who comes once a week, maybe you can simply ask that person to take your parent shopping or do it for them. Alternatively, if the issue is how to pay for a solution, you might know that your parent is a veteran and may be eligible for veteran’s benefits that would cover the cost. If you are not sure what resources your family has to deal with a particular need, leave it blank.
  7. Make a plan – Take a look at that prioritized list. IF there are lots of blanks, your first step is to begin to fill them in so that you can create a plan. If the list is pretty well populated, now is the time to figure out how you might be able to divide and conquer.
  8. Build a team for now and later – Identify family, friends, neighbors, volunteers along with other trusted advisors and professionals who will help you execute your plan. If you don’t know these people, network and find them. Once you know who they are, make a comprehensive list with names, contact information and notes regarding who is available to do what.
  9. Communicate with both your parents and your siblings – Don’t do any of this in a vacuum. It is imperative to include both your parents (assuming they are able to participate) and your siblings in the process of developing the plan. The more inclusive you can be, the less likely you will later face roadblocks.
  10. Execute your plan!

While each of these steps can seem overwhelming, if you try to tackle them one at a time in a logical order it will be much less so. You may find that you need to do a “deep dive” into one of the steps; if that’s the case, try to assess whether you should stop everything to do so or whether you should simply put that step in the “parking lot” and come back to it after you have moved through the others. Finally, remember that any plans you make and implement will need to be revisited from time to time as your parent’s needs or resources changes.

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

Questions to Ask Before Hiring an In-Home Caregiver

Questions to Ask Before Hiring an In-Home Caregiver

Written By:

mettinger Questions to Ask Before Hiring an In Home Caregiver
Michael Ettinger, Esq.
Ettinger Law Firm
Albany, New York
An ElderCare Matters Partner

The last thing that you want to do when deciding whether to hire an in-home caregiver for one or both of your parents is rush the decision. Picking this person takes time because they will be intimately involved in every part of your parent’s life. However, the right caregiver can ease the pressure that you feel to ensure that your parent is being properly taken care of.

If you are unsure of where to start in the caregiver process, here are a few questions to ask yourself, your loved ones, and the caregivers that you interview.

Is in-home care the best choice?

Before you begin the caregiver search, the first question that you should be asking is whether this is the right option for care. Some people do better in a nursing home facility than at home, where they can socialize with other seniors. Elderly parents with round the clock medical needs may also need more than an in-home caregiver.

What level of assistance is needed?

There are different types of in-home caregivers available, and the right one for you will be determined by the level of care that is required. Home health aides and personal care attendants are both options as in-home caregivers. Both provide assistance with daily activities like bathing, walking and dressing, shopping, and preparing meals. However, home health aides also can provide other health-related tasks for your loved one.

What level of training and screening does the caregiver have?

State laws vary on the definitions of home health aides and personal care attendants in addition to the levels of training that are required for each type of caregiver. Make sure that the agency that you choose is licensed, bonded, insured, and up to code with the laws of your state.

If your loved one needs special care for an issue like dementia, stroke, or paralysis you should make sure that the caregiver has the special training required to handle such care. You should also ask about whether the agency performs background checks and drug tests their employees.

What is the cost, and how will bills be paid?

Make sure that you understand the entire payment package for the agency and the caregiver. Extra charges for billing, taxes, workers’ compensation, itemized charges, and administrative costs can be tacked on separately or include them in a single fee for services. Furthermore, it is important to remember that neither Medicare nor other supplemental plans will cover in-home caregivers. Medicaid programs at the state level will pay for some home care services.

What are the caregiver agency’s rules of operation?

Check to see what the agency’s rules of operation are for their caregivers. Some require that you book a certain number of hours per week, others run round the clock, and some go off of the clock in the evening. Also, check to see what the policies are for cancellation and what backup procedure it has if the caregiver does not show.

Does your loved one like and approve of the caregiver?

The most important question of all to ask is whether your loved one likes and approves of the caregiver that is chosen. If the answer is anything but yes, the arrangement is bound to fail. To the extent that they are able, your loved one should have a say in who they want their caregiver to be.

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

Feeding Tubes for Elders: Elder Benefit or Elder Abuse?

Feeding Tubes for Elders: Elder Benefit or Elder Abuse?
Written  By:
jhalpern Feeding Tubes for Elders: Elder Benefit or Elder Abuse?
Jack Halpern
Founder & CEO
My Elder Advocate, LLC
New York, New York
An ElderCare Matters Partner

Imbedded in todays nursing home culture is a practice that has been notoriously associated with elder abuse in nursing homes. Nationwide, many nursing home residents with advanced cognitive impairment are tube fed (35% according to some studies), despite no demonstrable benefits of this intervention in this population.

Studies suggest that organizational features of nursing homes are associated with this practice, but underlying reasons for these associations are poorly understood.

A feeding tube in a sub-standard nursing home can be a death sentence. My Elder Advocate has been very successful in preventing this abuse from occurring in many cases, where we were called in early to advocate for clients who were losing weight in nursing homes.

Older adults in nursing homes may require feeding tubes for a variety of reasons including swallowing difficulties and as a precautionary measure to attempt to prevent aspiration pneumonia in certain types of patients.  These feeding tubes can be temporary or permanent and require close monitoring in order to avoid potentially life-threatening complications.

Margaret Mino has had a tough time grappling with the issue of feeding tubes – one of the crossroad decisions that family members have to so often shoulder for ailing elders. “It’s been a harrowing experience,” she said. She has loved and cared for her Uncle Rufus, now 89 and living in a Staten Island nursing home, since he moved into her parents’ home when she was a little girl.

A onetime coal miner, he has always needed family help — a cyst in his brain caused lifelong cognitive difficulties. He hasn’t eaten solid food for three years, but has done reasonably well on thickened liquids. And at their weekly visits, he can still talk with her, though mostly about the past. Lately, however, he’s grown awfully thin. When his weight reached 132 pounds, down from 165, she took her concerns to the staff. “He might be a candidate for a feeding tube,” a nurse suggested. Sometimes, the nurse added, people improve and start eating again and the tube can be removed.

“I just don’t think that’s very likely,” Ms. Mino told me. She knows a fair amount about the pluses and minuses of tube feeding in the elderly, having faced a similar decision for her father last spring. (I probably should have said that when it comes to caregiving, Ms. Mino, a federal employee, has had a tough 10 years.) She also knows that her uncle’s dementia will not abate.

Few questions are more upsetting to families than this one. Providing nourishment is, from the first moments of life, an elemental way for humans to demonstrate love and care. Saying no to a feeding tube can feel tantamount to allowing a loved one to starve. I sometimes wonder if it’s actually easier, emotionally, to decline CPR or a ventilator; we may not feel responsible for keeping relatives’ hearts beating or lungs functioning, but we have trouble overriding our impulse to feed them.

Hospitals that insert feeding tubes into patients with advanced dementia and discharge them to skilled nursing homes may, in fact, cause harm by making these patients more susceptible to pressure ulcers, according to a review of Medicare claims.

It had been believed that in patients with dementia, who often have eating disorders and nutritional imbalances cause and exacerbate pressure ulcers and prevent their healing. Feeding tubes delivering protein supplements were presumed to have been helpful. But prior studies were inconclusive and some studies revealed exactly the opposite. Up to a third of nursing home patients with advanced dementia have a feeding tube. In two-thirds of these cases, the tube was inserted while a patient was in the hospital.

Recognition is growing that dementia is a terminal illness that affects the body as well as the mind, and when a patient with dementia begins having trouble eating, this indicates the final stage of the illness has arrived. For these patients, she added, careful hand feeding can offer a safer and more comfortable alternative to feeding tube insertion, but it takes staff time and effort, which is a great problem in today’s severely understaffed nursing homes. It takes a substantial amount of time and effort to feed residents by mouth.

Statistically, for-profit hospitals were more likely to use feeding tubes, as were larger hospitals and those with the highest level of intensive care unit use for patients in their last six months of life. Likewise, for-profit nursing homes (80 percent of the nursing homes in the country) are more likely to encourage families to get feeding tubes for their elders, than not for profit nursing homes.

Nursing homes and hospitals together have “a strong financial incentive” to deal with patients with dementia by inserting feeding tubes rather than hand feeding them, which takes more time and patience.

The majority of the people who get these feeding tubes have already been in a nursing home for a while. They’ve exhausted their wealth and now qualify for Medicaid, and then become “dual-eligible,” qualifying for both Medicare and Medicaid. If the patient gets an infection, even a minor one, rather than treating the infection in the nursing home, they send them to the hospital.
The patients then become eligible for skilled nursing facility services for up to 100 days, ”which qualifies the nursing home to get paid roughly three to four times what would have been paid if the patient remains at the nursing home on Medicaid.

Because of the setting change, these patients develop disruptive behaviors, which usually leads to physical or pharmacological restraint with anti-psychotics. The nutritional supplements they’re getting can produce diarrhea. “Now, with the immobility, the incontinence, and diarrhea, they end up with pressure ulcers.”

It becomes a pathway. The nursing home wants to maximize its money so they send the patient to the hospital. The hospital wants to get that person out of there quickly so they can have a short stay and be under the number of hospital days they’re reimbursed for under that DRG. So the system is not focused on really doing a good job of talking with families about the risks and benefits of these feeding tubes. Instead, there’s a rush to put these in, and send the patients back to the nursing home.

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

Power of Attorney: Trust Your Agent

Power of Attorney: Trust Your Agent

Written By:
rfatoullah Power of Attorney: Trust Your Agent
Ronald A. Fatoullah, Esq., CELA
Ronald Fatoullah & Associates
Great Neck, New York
An ElderCare Matters Partner

When offering legal advice, one of the first things we recommend to our clients is that they must have a well-drafted power of attorney. A power of attorney is a document whereby the person signing the power (the “principal”) authorizes another person or persons (the “agent(s)”) to sign and act on his or her behalf with respect to financial matters. Having a power of attorney is imperative in case an individual should become incapacitated in the future. At such time, the individual may no longer be able to oversee his own finances, and having appointed an agent to do so will allow for the continuity of asset and income management without interruption. A power of attorney can also eliminate the need for a court appointed guardian should the principal become completely incapacitated.

When preparing a power of attorney, a great deal of thought must be given to who should be appointed as agent. The New York State General Obligations Law dictates that the appointed agent has a fiduciary responsibility to the principal. This means that the agent must always have the principal’s best interest at heart and must act in a prudent way that benefits the principal.

Nonetheless, the power of attorney does offer broad powers and an agent is given a large degree of leverage. When an individual becomes incapacitated, the transfer of such person’s assets might be necessary. Complex planning may be involved in order to preserve the person’s assets. Accordingly, a carefully drafted power of attorney should be extremely comprehensive, allowing the agent to do extensive planning, if necessary. In appointing an agent, the critical element is one of trust. If the principal trusts the appointed agent, it is not as important for him to understand the intricacies and nuances of advanced Medicaid planning. He can simply rest assured that since the document contains extensive powers, the appointed agent will be able to act on his behalf, should the need arise.

It is worth mentioning a recent news story in connection with this discussion. In 2007, Nicholas DeTommaso, then his in early 80s, appointed Pamela Becker, age 62, as his agent under a power of attorney. Two years later, Ms. Becker used the power of attorney to arrange for Mr. DeTommaso to legally adopt her. Mr. DeTommaso died one month after the adoption and Ms. Becker took over the lease to his Long Island City apartment for which he was paying $100 a month. The State Division of Housing and Community Renewal ruled that Ms. Becker was not entitled to the apartment because she only had lived there as a family member for 22 days before Mr. DeTommaso’s death and not the two years required by New York State. Ms. Becker refused to move out and has been fighting this determination, claiming she is a family member.

This story illustrates how vital it is to appoint a trustworthy party as agent; one who will not use the form to advance and promote his or her own financial interests. An experienced elder law practitioner will be able to guide you in the preparation of a power of attorney as well as other important legal documents.

If you need help with this or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Four Myths About Medicaid’s Long-Term Care Coverage

Four Myths About Medicaid’s Long-Term Care Coverage
Written By:
rfatoullah Four Myths About Medicaids Long Term Care Coverage
Ronald A. Fatoullah, Esq., CELA
Ronald Fatoullah & Associates
Great Neck , New York
An ElderCare Matters Partner

Long-term care is not cheap. The cost of employing a home care attendant in the New York City area ranges from $15 to $25 an hour and a nursing home bed runs from approximately $12,000 to $15,000 per month. Finding the right solution to help pay for long-term care is critical. While Medicare gets most of the news coverage, Medicaid still remains a mystery to many individuals. The fact is that Medicaid is the largest source for funding nursing home care. However, there are many myths about exactly who qualifies for Medicaid and what coverage it provides. Here are four myths followed by the real story.

Myth #1: Medicare will cover my nursing home expenses.

While Medicare does provide some coverage for nursing home expenses, the coverage is quite limited and is not long-term. Medicare covers only up to 100 days of “skilled nursing care” per spell of illness, of which only 80 days are fully covered. The patient must start paying a copayment of $148 per day (as of 2013) from the 21st to the 100th day unless he or she has supplemental insurance that will cover the copayment. To qualify for Medicare, the patient must enter a Medicare-approved “skilled nursing facility” or nursing home within 30 days of a hospital stay that lasted at least three days, and the care in the nursing home must be for the same condition.

Myth #2: You need to be poor to qualify for Medicaid.

Medicaid helps needy individuals pay for long-term care, but you do not need to be completely destitute to qualify. Generally, as of 2013, an individual is allowed to have up to $14,400 in assets and up to $820 in monthly income to qualify for Medicaid. In addition, retirement accounts of any amount in payout status are exempt in New York State. However, eligibility for Medicaid is not that cut and dried and often depends on the facts of each case. The rules vary depending on whether an individual is looking for “Community Medicaid”, which covers home care costs, or “Institutional Medicaid”, which covers nursing home costs. Eligibility is also different when the applicant has a spouse. Potential applicants or caregivers are strongly encouraged to explore with an elder law attorney the possibility of qualifying for Medicaid in order to help defray the cost of long-term care.

Myth #3: A prenuptial agreement will protect my assets from being counted if my spouse needs Medicaid.

A prenuptial agreement only works to keep property separate in the event of death or divorce. It does not keep property separate for purposes of Medicaid eligibility. However, a “sick spouse” may still be eligible for Medicaid even if the “well spouse” has assets. A “well spouse” should explore the eligibility rules with an elder law attorney.

Myth #4: I can give away up to $14,000 a year under Medicaid rules.

The rule that allows gifting up to $14,000 per year ($13,000 last year) is an Internal Revenue Service (IRS) rule, NOT a Medicaid rule. The IRS allows an individual to gift up to $14,000 a year without incurring any gift tax liability. However, under Medicaid rules, a gift of $14,000 or any other significant amount will trigger a penalty period. This means that for approximately every $11,000 gifted within the 5 year period before a nursing home Medicaid application is filed, Medicaid will not cover the applicant for one month. It is important to note that there is no penalty period on transfers of assets for community-based Medicaid eligibility.

Dispelling the above myths should encourage individuals or their caregivers to explore Medicaid as an option to paying for long-term care. Medicaid is definitely a viable alternative for many of us and is commonly used. However, the rules are complex and it is critical to consult with your elder law attorney to ensure no stone is left unturned.

If you need help with this or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.

Caregiver Agreements: Making the Pathway of Caregiving a Two-Way Street

Caregiver Agreements:
Making the Pathway of Caregiving a Two-Way Street

Written By:

jruggiero Caregiver Agreements: Making the Pathway of Caregiving a Two Way Street
James J. Ruggiero, Jr., Esq.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania
An ElderCare Matters Partner

Family caregivers play a major role in maximizing the health and quality of life individuals with acute and chronic illness in the United States. Recipients of care depend on family caregivers for assistance with daily activities, managing complex care, navigating the overwhelming health and health insurance systems and communicating with health care professionals. Family caregivers provide valuable care out of love and often necessity but the role of caregiver is an extremely demanding job. According to the National Alliance for Caregiving, 37% of caregivers spend more than 40 hours a week providing care and another 30% spend 20-39 hours assisting with needs. Caregivers cope with physical, emotional, spiritual and financial challenges brought about by the demands of the job and the need to reduce or forgo employment to care for a loved one. These challenges affect the caregiver’s health and quality of life as well as the recipients.

Long-term caregiving has significant financial consequences for caregivers, particularly for women. Caregivers face the loss of their own income, loss of employer-based benefits, shrinking of saving to pay for caregiving costs and a threat to their retirement income due to fewer contributions to retirement vehicles. One way to compensate an adult child willing to devote so much of his or her time to caring for an ailing or aging family member is through a caregiver agreement. The agreement is essentially an employment contract between the caregiver and the recipient of care. The family member and the caregiver stipulate to a caregiver’s tasks, the hours spent caregiving and financial compensation. Often it is hard to accept that a caregiver may want or need to be compensated for services rendered because love doesn’t pay the mortgage or for groceries but by having a binding legal contract in effect can protect both parties down the road.

Here are five important ways a caregiver agreement can help your family.

Caregivers get paid for the job they do

It offers a great way to support the person for their time and effort in caring. This may be a caregiver’s sole source of income or a second job. How much to pay a caregiver is up to the family. A good place to start is to look at how much a home health agency would charge. Current rates in Chester County PA are $18-25 per hour. These rates often come with minimum requirements and vary based on needs and time etc. After research and discussion, set a salary and establish a schedule for payment.

Define the caregiver relationship

A detailed caregiver agreement sets boundaries. It makes clear the extent of the services being provided and the amount of money the caregiver is getting paid. 

Keep peace among family members

Having a caregiver agreement in place helps minimize the conflict between family members over the handling of care. The existence of a contract helps elevate the validity of the arrangement and value the services provided by the caregiver. 

Clear the way for Medicaid

With regard to Medicaid eligibility, payments made to a caregiver under contract can reduce the care recipient’s countable assets, which in turn may accelerate Medicaid eligibility. Absent an agreement in writing, the money a recipient pays a caregiver may be deemed a gift by Medicaid. This triggering event may cause a period of delay where recipient may not qualify due to the current 5 year Medicaid look-back period. At the time of Medicaid application, Medicaid will total all payments made to caregiver for the past 60 months and divide that by the average monthly cost of a semi-private room at a nursing home in the state. This quotient is the penalty period which equals the number of months Medicaid will not pay for nursing home care. The monetary and emotional cost to the family for the delay in Medicaid far outweighs the time and cost to properly execute a caregiver agreement.

Keep care and money in the family

Many recipients find comfort in having care from a devoted family member over a stranger and the money the family pays for care stays in the family.

Caregiving is a journey. The journey changes daily, weekly monthly and yearly.

The caregiver agreement sets the stage for the journey and makes the pathway to caregiving a two-way street. It fosters open communication amongst caregiver, recipient and family members. It begins a relationship with an elder law attorney and may also be an opportunity to review, update or prepare legal documents including Authorization to Release Health Care Information, Health Care Power of Attorney, Living Will, General Durable Power of Attorney, Will and Trust(s). It paves the way for Medicaid planning, if necessary. The elder law attorney initiates the formation of a support team for the caregiver which includes professionals such as a financial advisor, banker, CPA, trust officer, insurance agent and local resources such as department of aging, religious organizations, hospitals and support groups.

With the understanding of the caregiver role, organization of legal documents and establishment of a support team, the caregiver relationship is on track for success.

Having a detailed, written caregiver agreement allows a caregiver to be Compassionate; Alert to current needs; Resourceful and Energetic in their care for a loved one.

If you need help with this or other elder care / senior care legal 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 Elder Law Attorneys on ElderLawAttorneys.us and Estate Planning Attorneys on EstatePlanningAttorneys.us – 2 additional websites sponsored exclusively by the national ElderCare Matters Alliance.