Life Transition Plan – Everyone should create one!

Everyone should create a Life Transition Plan!

ElderCare Matters Partner
Sheri Samotin, President

LifeBridge Solutions, LLC
Marina Del Rey, California & Naples, Florida
An ElderCare Matters Partner

What is a Life Transition Plan and why is it important?

A Life Transition Plan is a user’s guide to the end of your life that is laid out and specified by you in advance.  It is a “road map”, a compilation of all the important information that those whom you have chosen to step into your shoes will need to do their “jobs”.  A Life Transition Plan should include not only the obvious – assets, liabilities, income, expenses, important documents – and the like, but it must also address your wishes and decisions about things that may well occur when you can no longer contribute to the conversation.

Why do I need a Life Transition Plan if I already have a Last Will & Testament?

Older Adults should not just prepare a will, file it with their attorney and then conclude that they have done everything needed to get their final affairs in order.  They need to prepare a detailed Life Transition Plan while they are alive and well.

A Life Transition Plan should be updated regularly.  In fact, I recommend that you update your Life Transition Plan at least every six months and more often than this if you are experiencing rapidly deteriorating health or if you need to add new information – like a new home health care worker’s contract.

Once I have my Life Transition Plan established, whom should I share it with?

A Life Transition Plan should be shared with your adult children and/or with your care givers.  If you are not comfortable sharing this document , at least be sure that  someone knows that the information exists and  provide instructions as to how to access your Life Transition Plan when the need arises (sort of like an “In Case of Emergency, Break Glass” instruction).

Where can I get more information about making a Life Transition Plan?

You can find detailed information about Life Transition Plans, including the essential elements that should be included in every Life Transition Plan in my new book, Facing the Finish: A Road Map for Aging Parents and Adult Children.

If you need help with other Elder Care Matters, you can find thousands of Elder Care Professionals on – America’s National Directory of Elder Care / Senior Care Resources for Families.

Tips to Manage Caregiver Stress

Tips to Manage Caregiver Stress

Written by:

An ElderCare Matters Partner
Robert Stelletello
Owner of Right at Home Oak Park / Chicago
An ElderCare Matters Partner

It starts with your Father needing help monitoring his daily medications. Not too much later he needs regular at-home care. If you are a primary family caregiver, you understand the tough sacrifices and joys of helping your elderly loved one with daily routines such as bathing, dressing and eating, or making medical and financial decisions.

Yet, without realizing it, your efforts to comfort and support your loved one may be eroding your own health by contributing to elevated risk of high blood pressure, stroke, diabetes and anxiety. Stress from caring for an aging loved one also can increase the likelihood of headaches, disrupt your sleep and cause depression. To help, try the following caregiver stress relievers:

  • Focus on what you can do, not what you can’t. Don’t give in to guilt. Feeling guilty is normal, but understand that no one is a “perfect” caregiver. You’re doing the best you can at any given time. Your house does not have to be perfect, no one will care if you eat leftovers three days in a row and you don’t have to feel guilty about asking for help.
  • Get connected. Organizations such as the Red Cross and the Alzheimer’s Association offer classes on caregiving, and local hospitals may offer classes designed for families of those suffering from the disease your loved one is facing.
  • Join a support group. A support group can be a great source for encouragement and advice from others in similar situations. It can also be a good place to make new friends.
  • Seek social support. Make an effort to stay emotionally connected with family and friends. Set aside time each week for socializing, even if it’s just a walk with a friend. Whenever possible, make plans that get you out of the house. Many caregivers share that maintaining a strong support system is key to managing the stress associated with caregiving.
  • See your doctor. Get recommended immunizations and screenings. Make sure to tell your doctor that you’re a caregiver. Don’t hesitate to mention any concerns or symptoms you have. Ask your doctor about ways to support your own health.
  • Refresh your own health. Exercise at the gym or take a brisk walk a few times a week. Be sure you maintain good nutrition and get sufficient sleep.
  • Recruit help. Enlist the support of family members, friends and neighbors who can lend caregiving help. Also, seek regular breaks through respite care offered by a professional in-home care service such as Right at Home.
  • Stay connected. Keep up your own family connections and friendships. Having a close friend or clergyman who you can share your thoughts and emotions with is crucial as you work through the unknowns and challenges of caring for another person.
  • Continue with your own life. To maintain balance, it’s important to stay active with your own interests, hobbies and social groups. Don’t skip the fun events or forgo your normal faith and community activities.

Relieving stress regularly before health issues arise – safeguards your loved one’s care and preserves your relationship with them – one shared meal, one doctor’s report and one fond memory at a time.

If you need help with this or other Elder Care Matters, you can find thousands of Elder Care Professionals on – America’s National Directory of Elder Care / Senior Care Resources for Families.

Medicaid Planning For Married Couples

Medicaid Planning For Married Couples

Written By:

An ElderCare Matters Partner
Attorney James J. Ruggiero, Jr.
Ruggiero Law Offices, LLC
Paoli, Pennsylvania  19301
An ElderCare Matters Partner

Sometimes married couples find themselves in a position where one spouse is in need of skilled care and the other spouse is still well and plans to continue to reside in the family home. Under these circumstances, it is common for the couple to make a series of transfers to move assets out of the ill spouse’s names and into the name of the community spouse (with the assistance of an elder law attorney) for the purposes of qualifying for Medicaid. In order to remain Medicaid-qualified, the ill spouse must continue to keep an extremely small number of assets in his or her own name. An issue can arise when the well spouse fails to update his or her estate plan; if everything is left to the ill spouse, and the well spouse predeceases him or her, all of those assets that were transferred will go back into the name of the ill spouse and they will no longer qualify for Medicaid benefits. Working with a skilled elder law attorney is essential when a spouse needs skilled care; transfers must be made properly within the bounds of the complex and lengthy set of Medicaid rules.

What most people know is that Medicaid is a “needs-based” program, and in order to qualify, an individual must have very few assets in his or her own name (usually no more than $2,400.00). What people may not know is that for married couples, the well spouse who will continue to live in the community also faces a limitation on the assets he or she may have in his or her own name. This amount is known as the “Community Spouse Resource Allowance” (CSRA). In general, the community spouse can keep one-half of the couple’s total assets that are countable for Medicaid purposes, with a minimum of $23,448.00 and up to a maximum of $117,240.00 (for 2014). The community spouse is also entitled to keep a certain level of income, the Monthly Maintenance Needs Allowance (MMNA), which also has a floor and a ceiling. The community spouse is also afforded the ability to keep certain resources that would otherwise be considered “countable” if they were in the Medicaid applicant spouse’s name.

The CSRA and the MMNA are at the base of Medicaid planning for married couples. However, we routinely not only help families keep the family home, qualify for Medicaid, and ensure that Medicaid qualified individuals remain qualified regardless of any change in circumstance; but through the use of planning techniques and transfers all permitted under Federal and state Medicaid rules, we can potentially help the community spouse protect resources beyond the Community Spouse Resource Allowance.

For instance, Medicaid annuities offer one planning option for spouses whose resources exceed the CSRA. The use of a Medicaid qualified annuity can permit the community spouse’s resources to be reduced, while still permitting that spouse to make use of those assets for his or her benefit by turning the assets into a stream of income. As with all Medicaid planning, it is extremely important to get legal advice from a knowledgeable elder law attorney before engaging in any kind of Medicaid planning, including the purchase of an annuity. To be considered a “Medicaid qualified” annuity, the annuity must follow certain rules, otherwise the individual may be disqualified from receiving Medicaid benefits. And all transfers must be done within the boundaries of the intricate Federal and state scheme of rules and regulations governing Medicaid eligibility.

Having a loved one in need of skilled care is a challenging experience for any family. The thought of a spouse or family member entering a nursing home can bring worry and anxiety; and these emotions are sometimes compounded with the worry of how the family will afford the necessary care. There are certain protections under the Medicaid laws that will allow spouses the ability to keep some assets for their own benefit and living expenses while a spouse is receiving Medicaid payment for his or her skilled care needs. Consulting with an experienced elder law can bring comfort and piece of mind throughout a difficult process, and afford the family the ability to conserve as many assets as possible. Taking the time and expending the costs to plan now will pay off in spades later on. Although it may seem difficult to take action in these circumstances, we can’t stress enough that the earlier the planning begins, the more beneficial it will be.

If you need help with this or other Elder Care Matters, you can find thousands of Elder Care Professionals on – America’s National Directory of Elder Care / Senior Care Resources for Families.

Planning for Medicaid Qualification

Is it Unpatriotic to Plan for Medicaid Qualification?

Scott A. Makuakane, Esq., CFP
An ElderCare Matters Partner & the Hawaii State Coordinator for

Some people question whether Medicaid planning might be unpatriotic. After all, Medicaid is a “welfare” benefit funded by our tax dollars. Is it “wrong” to put yourself in the position to have the taxpayers pay for your long-term care? Let us begin by considering what it means to be a taxpayer.

Everyone knows that it is immoral and illegal (and unpatriotic) to cheat on your income taxes. But does that mean that any of us has an obligation to pay more taxes than the law requires? Of course not. The Internal Revenue Code allows us to take various kinds of deductions when we file our annual income tax returns. As long as we deduct no more than the law allows, we are engaging in the noble practice of tax avoidance. However, if we knowingly take a tax deduction in an amount or of a kind that we are not entitled to take, the terminology changes to tax evasion. For tax avoidance, a person is praised, for tax evasion, a person goes to jail.

In the 1916 U.S. Supreme Court case of Bullen v. Wisconsin, Justice Oliver Wendell Holmes wrote that “when the law draws a line, a case is on one side of it or the other, and if on the safe side is none the worse legally that a party has availed himself to the full of what the law permits. When an act is condemned as an evasion, what is meant is that it is on the wrong side of the line.” Taking economic advantage of what our law allows—staying on the “safe” side of the line—is both legal and patriotic.

Justice Louis Brandeis, whose tenure on the U.S. Supreme Court overlapped that of Justice Holmes, famously stated this same principle another way:

I live in Alexandria, Virginia. Near the Supreme Court chambers is a toll bridge across the Potomac. When in a rush, I pay the dollar toll and get home early. However, I usually drive outside the downtown section of the city and cross the Potomac on a free bridge. If I went over the toll bridge and through the barrier without paying the toll, I would be committing tax evasion. If, however, I drive the extra mile and drive outside the city of Washington to the free bridge, I am using a legitimate, logical and suitable method of tax avoidance. For my tax evasion, I should be punished. For my tax avoidance, I should be commended. The tragedy of life today is that so few people know that the free bridge even exists.

Knowing the alternatives that are available to you is the essence of wise planning. You cannot make a choice that you do not know you have. So if paying for long-term care is an issue for your family, learn all you can about Medicaid qualification so you can plan your and family’s financial future wisely. Availing yourself of a benefit that the law allows and intends cannot be unpatriotic.


by Attorney George P. Guertin
An ElderCare Matters Partner

An ElderCare Matters Partner

Little attention has been paid to the estate planning issues confronting blended families. A blended family or step family is often comprised of children who are natural to only one parent, as well as children that are natural to both parents. Blended families face many issues that the traditional “nuclear” family does not face. These issues include disinheriting ex-spouses, protecting children from the previous marriage, providing for the new spouse, providing for the children of the new marriage, and minimizing estate taxation.

Without proper legal planning, your ex-spouse, as surviving parent/Guardian, would likely be appointed by the Probate Court to manage the inheritance you leave to your children. That’s right, your ex-spouse… managing your money. To make matters worse; what if your children later predeceased your ex-spouse, and were single and childless at that time? Who would inherit your assets then? That is right… your ex-spouse, as the next-of-kin of your children, would inherit your money. This can be avoided through the use of a Will that has provisions to set up a Testamentary Trust for the benefit of your children after you pass.

A Testamentary Trust is a Trust that is created by a Will and only operative after you pass away and the Will is admitted to probate. You can name someone you trust to be the Trustee of this Trust, who will make disbursements to your children for their health, education, and support. In your Will you can also specifically disinherit your ex-spouse to make sure under no circumstances are they to get anything from your estate. Furthermore, in your Last Will and Testament or a Trust you can make provisions to protect your new spouse.

In the absence of a Prenuptial Agreement to maintain separate assets, most spouses in blended families tend to blend (combine) their wealth. However, if you predecease your new spouse, then you may forever disinherit your own children of your share of such blended wealth! Thereafter, upon the death of your new spouse, your assets may be inherited by your stepchildren, or even by your new spouse’s next spouse and their children. A Will with Trust provisions or a Revocable Living Trust can prevent this problem.

Regardless of whether children are reared in a traditional nuclear family or in a blended family, great care should be given to protect any inheritance both for them, and from them. For starters, wealth representing a lifetime of your hard work and thrift can be squandered in very short order. Dollars earned just spend differently than dollars inherited! In addition to good old fashioned squandering, an inheritance can quickly vanish through divorce, lawsuits and bankruptcies.

Aside from disinheriting your own children, blending your wealth with your new spouse may unnecessarily enrich the IRS. How? The Internal Revenue Code provides an exemption to each taxpayer for purposes of sheltering a certain dollar value from estate taxes, with marginal rates reaching nearly 50%. However, this is a “use it or lose it” exemption, and you lose it when title to your blended assets vests in your new spouse upon your death. In addition to disinheriting your own children, this mistake alone can trigger hundreds of thousands of dollars in unnecessary estate taxes. Why unnecessarily enrich the Internal Revenue Service?

Proper planning can control where your assets go, and how they are used when they get there. This is especially important when planning for blended families and their unique needs. Although blended families face unique issues, these obstacles can be overcome through proper planning.

If you need help with this or other Elder Care Matters, you can find thousands of Elder Care Professionals on ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources for Families.

MEDICAID MYTHS : A Grain of Truth, but Mostly Myth – This Week’s Article on

MEDICAID MYTHS: A Grain of Truth, but Mostly Myth

ElderCare Matters, Michigan
Don L. Rosenberg, Attorney and Counselor
Troy, Michigan
Michigan State Coordinator,

1. Myth: “I have to give away everything I own to get Medicaid.”

The Truth: Basically, a person is permitted to own some property, and still be eligible for Medicaid. The trick comes in knowing what is “countable” and what is “non-countable” under the Medicaid rules. For a married couple or single person in Michigan this includes, for example, equity in one home up to $500,000, with certain exceptions to the equity limitation. Whether you are married or not, certain types of prepaid burial contracts are non-countable. There are many other types of “non-countable property,” such as extensive funeral and burial space planning and some types of annuities. The bottom line is, you don’t need to be completely without assets to be Medicaid eligible.

2. Myth: “I can’t give anything away and get Medicaid.”

The Truth: In some cases, the Medicaid rules provide that a person can be disqualified for giving away property. However, a lot depends on what is given away, to whom, and when. So again, it’s complicated and it changes all the time. Some asset transfers are penalized under the Medicaid rules and some are not. For instance, transfers: to a blind or disabled child, to a caretaker child, between spouses and for the sole benefit of a spouse are allowed transfers under Medicaid law.

3. Myth: “I have to wait 5 years after giving anything away, to get Medicaid.”

The Truth: The disqualification isn’t always 5 years long and sometimes there is no disqualification at all. True, there is a 5-year “lookback” for some asset transfers under the Medicaid rules. This means that the Medicaid agency will look back at all transfers of property, including sales for less than market value. However, the rules penalizing transfers do not apply to all transfers. See #2 above.

4. Myth: “I can keep all our marital property and my inherited property when my spouse gets Medicaid.”

The Truth: When a married person applies for Medicaid, assets in either or both spouse’s name are considered by the Medicaid agency. However, some assets won’t be “countable” and you may keep some as an asset allowance if your spouse enters a nursing home. In fact, there are very special techniques only available to a well community spouse that can protect all of a married couples assets, including the family cottage. See #1 above.

5. Myth: “If I put my property into my spouse’s name, I will be eligible for Medicaid.”

The Truth: Assets are counted, regardless of which spouse’s name they are in. However, the healthy spouse will be given several months to re-title assets from the name of the spouse in the nursing home, into the name of the healthy spouse. The Medicaid agency explains these rules when the nursing home spouse gets into the Medicaid program.

6. Myth: “Medicare will cover my nursing home bill.”

The Truth: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. In general, there are 20 days of full coverage if you go into the nursing home after at least three days in the hospital, and are receiving skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare. After that, you will either pay out-of-pocket, or get Medicaid, unless you have private long-term care insurance.

7. Myth: “If I enter a nursing home as a private pay resident, I must use up my assets before I can get Medicaid.”

The Truth: You are not required to use your assets to private pay for the nursing home care. However, some nursing homes might try to make you believe that you do have to do this. They are paid less under the Medicaid program than they collect from private pay patients. Some people seek advice from an elder law attorney to find out how they can become Medicaid eligible before having spent a significant part of all of their assets on the private pay rate.

8. Myth: “I can only ‘spend-down’ my assets on medical or nursing home bills.”

The Truth: See # 7 above. Nursing homes may tell you that you have to spend your savings on the private pay rate, before applying for Medicaid, but this is not true. In fact, it’s against the law for them to tell you this!

9. Myth: “My power-of-attorney automatically has the power to take property out of my name, if I ever need Medicaid.”

The Truth: Your best tool to be able to plan for Medicaid eligibility, should you ever need it, is to sign a general, durable power of attorney that includes a “gifting” power. Your agent under the power of attorney will only be able to re-title your assets if your power of attorney contains a “power to make gifts.” Most powers of attorney don’t contain this, so you might want to ask your attorney to add it. The court procedures to transfer assets without a “gifting power” can be expensive and time-consuming, and may not allow the type of asset protection that many people would like to accomplish.

Without a “gifting power” your agent is generally limited to spending your money on your bills and selling your assets to generate cash, to pay your bills. A “gifting power” is recommended for people who want to become eligible for Medicaid and not be limited to the “non-countable” assets allowed under that program.

One more word about the “gifting power.” You should require your agent under your power of attorney to consult with an attorney experienced in Medicaid law before making any asset transfers.

10. Myth: “All property transfers will cause me to be disqualified from Medicaid.”

The Truth: Not all transfers of property will cause a person to become ineligible for Medicaid. See #2.

11. Myth: “My income may have to be used to pay my spouse’s nursing home bill.”

The Truth: This is not true in Michigan or the majority of states.

12. Myth: “All of my spouse’s income must be used to pay the bill if my spouse is on Medicaid in a nursing home.”

The Truth: The law allows you to keep a portion of your spouse’s income if your income is below certain limits. In addition to this allowance, you may be entitled to a greater allowance if the cost of maintaining your home exceeds a certain amount or if a state hearing officer or a judge orders a greater allowance.

13. Myth: “I can hide my assets and get eligible for Medicaid.”

The Truth: Intentional misrepresentation in a Medicaid application is a crime and can be costly. The IRS shares any information concerning income or assets you have with the county department of social services. You or whoever applied may have to pay Medicaid back to avoid prosecution.

14. Myth: “Medicaid rules that applied to my neighbor when he went in a nursing home will also apply to me.”

The Truth: Medicaid rules change, and change often, so don’t count on the law that applied to your neighbor still applying to you. Also, there may have been facts about your neighbor’s situation that you just don’t know. It’s best to have your situation analyzed by a competent elder law attorney.

15. Myth: “Medicaid will take my home.”

The Truth: Yes. It is true Michigan now has an Estate Recovery law but with proper planning by an expert attorney the home can still be saved. Estate Recovery means that people who receive Medicaid benefits for nursing home level care can be subject to repaying the state for the costs of their care after they die. Typically, that means a claim against the home of the Medicaid beneficiary.

The Estate Recovery law is full of traps for those that do not have the foresight to plan ahead with an experienced elder law and estate planning attorney.

The Future of Long Term Care in America – This week’s Elder Care Article on

The Future of Long Term Care in America

  An ElderCare Matters Partner
By Ivan Michael Tucker, Esq.
Altamonte Springs, Florida
An ElderCare Matters Partner

The future of long term care in America is heading for a real crisis. The intent of this article is not to scare the average citizen but to give him or her early warning as to the impending changes in Medicaid as we know it. One problem with predicting the future, even with all the cards on the table, is knowing precisely when this change is coming about.

In addition to the inevitable change, to make matters worse is the reality that this is a political question. Neither the Democrats nor the Republicans want to be known as the party that killed the golden goose. That includes the President whoever that may be at the time that the inevitable becomes reality for our elderly population.

According to the 2012 Social Security Fiscal Report, 76 million Americans will turn 65 from 2007-2027; that averages out to 10,000 everyday. That means 200 new senior citizens each day in each state. Of those, 70% will require some form of Long Term Care in their lifetime. That’s 53.2 million long term care patients. And of those, 50% or 26.6 million people will need care that will last for more than one (1) year.

The 2009 National Nursing Home Survey reports that the average patient stays in a Long Term Care for approximately thirty (30) months. While the Congressional Budget Office projected that the average cost of care in 2014 will be $7,833 per month or $93,996 a year. Of course, an average means that the cost of care in some states already exceeds the national average.

The reality is that most people will not be able to afford to pay $7,833 a month or $93,996 a year for long term care. Granted that some of this care is already picked up through an individual’s Social Security monthly income, but Medicaid pays the bulk of the long term care bill. Even the Veterans Administration cuts its pay out to disabled veterans and their spouses from perhaps several thousand dollars each month for home care and assisted living expenses to just $90 a month or $1,080 a year when the eligible patient must be placed into a skilled nursing facility.

Ask yourself these questions, can I afford to pay upward of $93,966 per year for my long term care or my spouse’s care? Can my children pay upward of $93,966 for my long term care? Who pays for me and my spouse when we are both in a nursing home at the same time and the total bill runs to $187,992 for the year? Can you afford $234,990 to take care of you or your spouse for 2.5 years in a long term nursing facility?   Can you afford $469,990 to take care of you and your spouse for 2.5 years in a long term nursing facility? What will be the effect of inflation on these numbers over the coming years?

Since for most people their largest asset is their home, the current protection for their home under the Medicaid rules must and will change. That doesn’t mean that they will lose their home to the government as most people wrongly fear today. But, people will have to tap into their home equity to pay for long term care in the future. This will, undoubtedly, mean that seniors will have to obtain a reverse mortgage on their home to pay for long term care insurance.

Even with the addition of long term care insurance, that doesn’t mean that the need for some reduced form of Medicaid will not be needed. There will still be costs that will not be covered due to inflation. There will still be costs for those that haven’t purchased enough long term care insurance protection and there, of course, will be those that have no protection, at all, when the need for long term care becomes a reality.

While this article will certainly make you stop and take notice of the impending problem, its true purpose is to cause you to realize that NOW is the time to take positive action for your future. The only resolution, in whole or in part, to this problem is to PLAN, PLAN and PLAN for that future. Those that are wise and successful will act like squirrels and prepare for the impending winter. Those that don’t take this warning will be like the ostrich that hides his head in the sand. Wouldn’t you rather be a squirrel?

If you need help with this or other Elder Care Matters, you can find thousands of Elder Care Professionals on ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources for Families.

The Do’s and Don’ts of Signing a Nursing Home Admission Agreement as a Responsible Party

The Do’s and Don’ts of Signing a Nursing Home Admission Agreement
as a Responsible Party

Henry C. Weatherby, Esq,, CLU, ChFC, CEBS
Bloomfield, Connecticut
An ElderCare Matters Partner

When a person is admitted to a nursing home, it is often a family member who manages the details of the move. If you are managing a loved one’s transition into a nursing home, you will likely be asked to sign a nursing home admission agreement as your loved one’s “responsible party.” These agreements can be very thick, complicated, and confusing. To make matters worse, you are often asked to sign them as soon as the person is admitted, at a time when you would rather be focused on making sure your family member is comfortable. You are likely to be facing a great amount of stress. Don’t feel pressured to sign an admission agreement on the spot. Take the time to review the document and make sure you understand what you are signing. You do not want to accidentally accept financial responsibility for your loved one’s care or give up any of your loved one’s rights.

Federal law and CT state law prohibits nursing homes from requiring you to guarantee payment of nursing home bills. This means that they cannot require you to sign as responsible party upon your loved one’s admission. Importantly, the your loved one cannot be refused admission due to your refusal to sign. The simplest way to avoid the risk of signing as a responsible party is by having your loved one sign the nursing home admissions agreement him- or herself. If the person is unable to sign due to a severe cognitive impairment or a physical limitation, you may decide to sign on that person’s behalf. If this is the case, there are other things you can watch out for to avoid liability for the nursing home costs. No matter who signs the agreement, it is important to take the time to make sure that person understands what it means.

Even if you are not made personally responsible for a resident’s nursing home costs, an admission agreement may still require a responsible party to use the resident’s assets to pay the nursing home costs and to help the resident qualify for Medicaid. In Connecticut, nursing homes have successfully sued the responsible party under such a contract. The nursing homes argued that the responsible party breached the contract by failing to qualify the resident for Medicaid in a timely manner, unreasonably delaying the Medicaid application process, or improperly transferring the resident’s assets. Even if you are only signing the admission agreement on behalf of the resident under a Power of Attorney, a court may still find that you are a responsible party. If you are managing the financial affairs of a nursing home resident, you need to familiarize yourself with the requirements for Medicaid. You should consult an attorney with Medicaid experience so that you do not unintentionally jeopardize the resident’s Medicaid eligibility and create liability for yourself.

In addition to understanding the implications of signing as a responsible party, there are other provisions to look for when signing a nursing home admission agreement. Keep an eye out for a binding arbitration provision. This type of provision will state that all disputes regarding the resident’s care will be decided through arbitration. You should know that signing such a provision means you are giving up your right to go to court to resolve a future dispute with the nursing home. The nursing home cannot require you to sign such a provision. However, if you do sign a contract including an arbitration provision, it will generally be enforceable.

If you are helping a loved one’s move to a nursing home, getting informed is one of the best ways you can protect your loved one and yourself. If at all possible, consult an experienced Elder Law Attorney before signing any documents from the nursing home. You can find experienced Elder Law Attorneys near you on and on – two online elder care resources sponsored by the national ElderCare Matters Alliance – Elder Care / Senior Care Professionals who can help you plan for and deal with a wide range of elder care matters.

You Owe it to Yourself and Your Family to Execute an Advance Medical Directive

“If Only . . .”: Why You Owe it to Yourself and Your Family to Execute an Advance Medical Directive

By John J. Campbell, Esq., CELA
An ElderCare Matters Partner

Terri Schiavo was only 26 years old in 1990, when her heart stopped as the result of an eating disorder.  Terri suffered serious brain damage that left her in a persistent vegetative state with little, if any, hope of recovery.  Terri could breathe on her own, but required artificial nourishment and hydration because she could not swallow.  Terri’s husband believed that Terri would not want to continue living in that state, so he sought to have her feeding tube removed.  Terri’s parents believed that Terri would want to continue living in the hope that someday she could be cured.

And so the ordeal began.  Terri’s husband and parents began litigating over Terri’s fate in 1998 in the Florida Courts.  Surely, you or someone you know has read about it in the papers or has heard about it on the evening news over the past several years.  As of the writing of this article in January, 2005, that litigation rages on.

In the interim, there were trials, hearings and appeals to determine whether Terri would want to continue receiving medical treatment merely intended to keep her alive without a reasonable chance of recovery or cure.  Finally, the Florida Supreme Court entered an order in 2003, directing that Terri’s feeding tube be removed.

Within a week, Governor Jeb Bush successfully lobbied the Florida legislature to pass “Terri’s Law”, a special law directed specifically at Terri’s case, requiring that her feeding tube be reinserted.  That law was successfully challenged in the Florida courts, ultimately resulting in a holding by the Florida Supreme Court that the law was unconstitutional.  On January 24, 2005, the United States Supreme Court declined to hear the appeal from the Florida Supreme Court’s final decision.

Terri’s law is no more.  The battle is over, but not the war.  Motions and appeals are still pending in the Florida courts that must be resolved before the final outcome is known.  In the meantime, Terri continues in her persistent vegetative state, kept alive by artificial nourishment and hydration.

It seems that everyone involved has an opinion or belief as to what Terri would have wanted.  Surely, all of those persons are well-meaning and believe that they know Terri’s wishes and are looking after her best interests.  However, in all the arguments before all the courts, in all the pleadings and briefs, there is one opinion that has not been and probably never will be expressed – Terri’s.  Ironically, the one voice that could silence all of the controversy and speculation once and for all cannot speak.

If only Terri had executed a living will while she was still competent, her family might have been spared 7 years of litigation and all of the expense, stress and heartbreak that has gone along with it.

You and every competent adult in the United States have a legal right to refuse unwanted medical treatment.  This means you can accept, question, reject, or withdraw any medical procedures or treatments offered to you.

If you become incapacitated (unable to make decisions), decisions concerning your medical treatment may be made by another person for you.  If you execute an advance medical directive while you still have the legal capacity to do so, that directive would provide guidance to the person making those decisions.  The directive might even determine who would make those decisions for you.  However, if you become incapacitated and have not executed an advance medical directive, you and your loved ones could very well find themselves having to resort to the courts.

There are two legal documents in virtually every state that allow you to make advance medical directives: the Living Will and the Medical Durable Power of Attorney.  You can take affirmative steps now to preserve your right to make medical decisions in case you later become incapacitated.


            A “Living Will” is a document which says that, if you are terminally ill or injured and unconscious, comatose or incompetent, you do not want to be kept alive by medical procedures which merely postpone the moment of death.  Although a Living Will is very limited in scope, it is nonetheless a powerful statement of your intent.

A Living Will may be executed by any competent adult who is eighteen (18) years of age or older.  The will must be in writing, signed by you or signed by another in your presence and at your request.  The signing must be in the presence of at least two witnesses, who must also sign.  A witness cannot be an heir or one who stands to inherit, and cannot be a doctor, nurse, or other employee of the attending physician or treating facility.  You may revoke the Living Will at any time:  orally, in writing, or by burning, tearing, canceling, obliterating, or destroying it.

Once the Living Will is executed, it can be applied only in restricted situations.  You must be certified as being in a terminal condition by a physician (by two (2) physicians in some states); have been unconscious, comatose or incompetent for the time specified in your state’s Living Will statute; and you usually cannot be pregnant.  The physician must give notice to your nearest family members and wait a statutorily prescribed period of time, usually 48 hours, after certification for any response.  If there is an objection, a guardian is appointed for you by the court and a hearing is held.  After the foregoing procedure has been followed, with court permission the physician may withhold life support.

Withholding life support does not normally include withholding pain medication.  Usually, you may choose in the Living Will whether withholding life support includes withholding artificial nourishment.

Your attending physician must honor the directives of the Living Will or relinquish your care to another physician who will.  The statute specifically states that death due to compliance with the Living Will is not suicide or homicide.

A Living Will only applies in situations where death is imminent.  It does not apply where death is not imminent, but you are unable to make medical decisions for yourself.  Because a Living Will is so limited in application and does not appoint an agent or surrogate on your behalf, it is not sufficient by itself to cover all types of medical decisions.  It is far better to also execute a Medical Durable Power of Attorney.


            A Medical Durable Power of Attorney (MDPOA) appoints an agent to speak for you about medical treatment decisions when you cannot.  An MDPOA has much wider application than a Living Will because it does not require that you have a terminal condition.  There is also much more flexibility in an MDPOA because you can set forth, in your own words, your concerns about “quality of life” issues and other specific wishes about your care.  A Medical Durable Power of Attorney can also incorporate Living Will provisions or give your agent specific authority to enforce the terms of your Living Will.

In some states, such as Colorado, health care providers are required to comply first with your wishes, then the statements in a Living Will if your wishes cannot be expressed, and finally the decisions of your agent under an MDPOA.  Health care providers are protected from any liability for either following your wishes as stated in a Living Will or following the instructions of an agent under an MDPOA.

A previously executed Living Will could take precedence over an MDPOA.  This means that a previously executed Living Will could nullify the authority given to an agent under an MDPOA in any situation where the Living Will would apply.  To avoid this problem, it is important that your MDPOA specifically refer to your Living Will and make it clear that your agent has authority to make decisions according to the provisions in your Living Will.


            The laws of every state provide some means to create an advance medical directive.  Whether you choose to execute a Living Will, a Medical Durable Power of Attorney, or both, it could turn out to be one of the most important choices you have ever made.  It is your best chance in a situation where you cannot speak for yourself to ensure that your voice is heard regarding what medical care you wish to receive or decline.

Advance medical directives are among the most powerful legal documents you can create.  However, your advance medical directive will be useless if your doctor or medical facility is not aware of its existence.  Keep your original Living Will and Medical Durable Power of Attorney in a safe place – preferably a safe deposit box.  Make certain that you provide copies of those documents to your primary care physician, to any other physician who treats you and to any hospital or medical facility where you might seek and receive care.

You should also take time to discuss the contents of your advance medical directives with your family and friends.  You should especially discuss your directives with anyone whom you may appoint as your agent under an MDPOA.  The more thoroughly you make your wishes known, the better chance your wishes will be followed if you are incapacitated.

You owe it to yourself and your loved ones to consider creating an advance medical directive, regardless of your age or your current health.  Unexpected tragedies can and often do happen without any warning.  If something happens to you, would you want to leave your family and friends wondering: “If only. . .”?


            As it turned out, the war was indeed not over.  In February, 2005, Judge Greer, the Probate Judge in Florida with jurisdiction over Terri’s guardianship, ruled on all pending motions and ordered Terri’s artificial nourishment and hydration to be discontinued on March 18, 2005.  What ensued over the next month was simply incredible.

Protesters began to gather outside the hospice where Terri was residing.  Media coverage intensified.  Politicians, religious leaders, doctors, medical ethicists, entertainers and others were quick to voice their opinions on the removal of Terri’s artificial nourishment and hydration.  The result was a polarized and bitter national debate that rose to fever pitch as the court’s March 18 deadline grew nearer.

On March 16, 2005, the U.S. House of Representatives passed a bill directed at preventing the removal of Terri’s feeding tube.  The following day, the Senate passed its own version.  Unable to agree on the contents of the bill, Congress declared on March 18 that it was instituting a congressional investigation and issued a subpoena to Terri, requiring her to appear before Congress and testify.  Subpoenas were also issued to the personnel at Terri’s hospice, directing them not to carry out the court ordered removal of Terri’s feeding tube.

In issuing the subpoenas, Congress was attempting to invoke a federal law providing protection for congressional witnesses.  The strategy did not succeed.  Judge Greer immediately ordered that the congressional subpoenas be disregarded.  The U.S. Supreme Court declined to intervene on the motion of Congress and allowed Judge Greer’s ruling to stand.  On Friday, March 18, 2005, Terri’s feeding tube was removed for the third time since 2001.

On Sunday, March 20, the U.S. Senate held an emergency session which resulted in a bill granting jurisdiction to the federal courts to review Terri’s case to determine whether she had received adequate due process protections in the Florida probate proceeding.  The House passed the bill just after midnight the next morning and the bill was rushed to President Bush, who immediately signed the bill into law.

Terri’s parents filed suit in the U.S. District Court in Florida later that same day.  They also asked the Court to enter an injunction to require the reinsertion of Terri’s feeding tube pending the outcome of the case.  On March 22, 2005, a U.S. District Judge denied the injunction, stating that Terri’s parents had failed to demonstrate the likelihood that they could prevail in the case on the merits.  Terri’s parents filed an emergency appeal in the U.S. 11th Circuit Court of Appeals.

On March 23, a 3 judge panel of the 11th Circuit declined to overturn the District Court’s ruling.  Terri’s parents immediately asked for a review by the full Court, which promptly upheld the decision of the panel.  Terri’s parents immediately appealed to the U.S. Supreme Court.  On March 24, the Supreme Court declined to take the case.

On March 25, Terri’s family returned to the U.S. District Court in Florida with a new motion to reinsert Terri’s feeding tube.  The motion was denied that day.  Another emergency appeal to the 11th Circuit by Terri’s parents on March 25 failed.

On Saturday, March 26, Terri’s family filed a new motion before Judge Greer in the Probate Court, claiming that Terri had tried to say “I want to live” just before her feeding tube was removed.  Judge Greer rejected the motion.  Another emergency appeal, this time to the Florida Supreme Court, was similarly rejected that afternoon.  It had been 8 days since Terri’s feeding tube was removed.

In the meantime, the protesters outside Terri’s hospice became more and more active.  In all, at least 48 were arrested trying to force their way into the hospice with offerings of bread and water.  One, who had traveled across country heavily armed and intending to “rescue” Terri, was arrested before he could carry out his plans.

On Monday, March 28, the 11th Circuit Court of Appeals surprisingly entered an order permitting Terri’s parents to file another appeal.  However, the Court denied the appeal itself the next day.  Once more, Terri’s parents attempted to invoke the authority of the U.S. Supreme Court.  The Court rejected their attempt on Wednesday, March 30, apparently exhausting any remaining legal options that Terri’s parents had.

On Thursday morning, March 31, 2005, 13 days after the court-ordered removal of artificial nourishment and hydration, Terri Schiavo died.  May she finally rest in peace.


This Week’s Elder Care Article on is titled, “The ‘Power’ in a Power of Attorney (POA)

The ‘Power’ in a Power of Attorney

By Paul T. Czepiga, Esq., CELA
An ElderCare Matters Partner

Lawyers are continually asked by clients whether the client should give their children or others their Power of Attorney. There is no standard answer because everyone’s financial situation and relationship to their children is different. A meaningful response requires that the client understand what a POA is and what it can and cannot do for them. My view is “Yes, you should give a POA” but only if you come to that conclusion after first discussing all of the following considerations with your advisor. One can best summarize the utility of a Power of Attorney by borrowing from a well known phrase and saying that “never has so little done so much for so many.” The benefits of a POA will be explored later in this article, but let’s begin with a basic understanding of what a POA is.


A POA creates an agency relationship between the parent who signs the POA, known as the principal, and the child (or other trusted advisor), known as the agent. Only the parent is required to sign the POA. Because it is an agency relationship, the ability of the child to act on the parent’s behalf ends when the parent either dies or revokes the POA. A POA can be granted to enable the child to perform an unlimited number and range of functions on behalf of the parent or to perform only certain functions. The Power of Attorney that will be discussed in this article are durable powers of attorney, meaning that are intended to continue in the event of the principal’s incapacity. A POA is durable if it contains language that expressly states that the POA will remain in effect regardless of the principal’s subsequent incapacity. Without such a statement, the POA lapses if the parent later becomes incapacitated??something almost always not intended when drafting POAs for estate planning purposes.

Health Care Decisions

It was not until May 1990 when the Connecticut legislature added “health care decisions” to the enumerated list of powers that could be granted under a POA. Therefore, anyone with a pre?1990 POA should execute a new POA that includes health care provisions if they want their agent to have that authority. The definition of health care decisions stops short of (does not include) termination of treatment matters??these are governed by Connecticut’s living will statute enacted in 1985 and subsequently amended and expanded in scope in 1991.

Springing Power of Attorney

A second significant change in POAs occurred in 1993 when Connecticut created a Springing Power of Attorney. There had always been a desire on the part of people to be able to grant someone authority as their agent provided that authority did not become effective until some future triggering event. The concern was that the agent would use the POA at times and for purposes not intended by the principal. For example, spinster aunt would like to name nephew as her agent under a POA, but is afraid that nephew might abuse his authority (more on this later). Right now she is perfectly able to manage her affairs and does not want nephew to act for her in any manner until she can no longer do so herself. Before 1993, Connecticut did not give spinster aunt any choice with a POA?it was effective when signed and if nephew wanted to exercise his authority as agent, he could. With a Springing POA, it is now possible to name someone your agent, but the agency is not effective until the future. For example, aunt could name her nephew as agent and provide that his authority does not come into existence until aunt is “no longer capable of managing her affairs” (a mental incapacity) or “attending to her physical needs and care” (a physical infirmity) or both.

Has Aunt succeeded in protecting herself? The answer is yes, but marginally so. Under the new statute the nephew, before he can act under the Springing POA, must sign an affidavit in front of two witnesses and a notary attesting to the facts that 1) aunt named him as agent in a POA, 2) his authority does not take effect until aunt becomes incapable of managing her affairs or attending to her personal needs and care, and 3) one of those prerequisites has occurred. There is no need for independent medical evidence that aunt is really in such a condition unless aunt required it as a condition to nephew’s authority.

Choosing An Agent

This scenario takes me to what I consider to be an inviolate litmus test when it comes to counseling someone on whether to grant a POA. If there is no one in whom the principal has full, total, and complete trust, then a POA, regardless of whether it is springing, should not be given. If the principal spends more than a split second pondering if there is such a person, than they have already flunked the test. For example, spinster aunt could have required that nephew’s affidavit have attached to it a certification by a Connecticut licensed physician attesting to her incapacity, but if aunt wants or needs such a precaution she has already failed the litmus test. I find that in my practice, about sixty percent (60%) of my clients use the springing POA and the rest use a non-springing POA. There is also a direct correlation, with married couples, between length of marriage and type of POA used?the longer the marriage the more likely it is that a non-springing POA will be used.

Limitations and other Express Powers

As mentioned earlier, in a financial planning and Medicaid context, it is best to give a POA that conveys the broadest possible authority, limited only by the principal’s concerns. Connecticut’s statutory form POA and Springing POA convey thirteen separate powers, including “all other matters.” Although this sounds fairly inclusive, it is not.

The most harmful limitation is that the Connecticut form does not expressly give an child the ability to makes gifts of the parent’s assets. One’s incapacity does not lessen the need to reduce the gross taxable estate for estate tax reduction purposes or to remove assets out of one’s name for Medicaid eligibility purposes. Without an express gift making provision, it will be very difficult to transfers the parent’s assets to their beneficiaries even though this is what the parent would have wanted. Even so, gift giving provisions should not be automatically included in all POAs without first pondering the need and ramifications of such a power. If gift giving is to be included, then the parent should also address to whom may gifts be made and to what extent. To the spouse only and unlimited? To children? If to children, must gifts be equal to the children each year? What if there is a change in a child’s circumstances (for better or worse)??should or must gifts still be made to that child? If gifts are limited to the annual exclusion, what if there is a need to rapidly deplete the estate for Medicaid purposes?

Other powers that I expressly add to my POA after discussion with the parent include dealing with the State of Connecticut and the IRS on all tax matters?income and gift (including gift splitting) and the DRS for income, gift and sales and use tax, accessing safe deposit boxes, changing domicile, creating, funding and requesting distributions from revocable and irrevocable trusts, changing beneficiary designations on life insurance, annuities, and retirement plans, and further elaborating on health care decisions. Although some of these are arguably included in the statutory form already, it does not hurt to single them out for enforceability purpose.

Acceptability of a Power of Attorney by Third Parties

Enforceability of a gift giving provision can be a daunting task when a bank teller states that bank policy requires a POA not more than two years old and the POA is three years old and the parent is incapacitated . Or the stock broker says that regardless of the POA’s age, you must produce a statement from the parent stating that the POA has not been revoked, but the parent is no longer competent. What to do? Add a paragraph to the POA stating that unless the third party has actual notice of revocation they may rely on the agent’s authority and include a hold harmless or indemnification of the third party. This may help. The point being that your advisor should add to the POA whatever they can to make it ”acceptable” to the outside world.

One curative would be to have on standby (or in lieu of the POA) a living trust. The child can convey the parent’s assets to the living trust. This would not be a gift. Once the assets are in the living trust, the trustee can, within the scope of authority conveyed by the trust, do with the assets whatever is needed because the trustee has legal title to the assets. This differs from the agent who does not have legal title to the principal’s assets and it is this difference that causes third parties to be wary when dealing with an agent using a POA to give away the principal’s assets.

In summary, a POA is a powerful and useful tool for a variety of estate planning needs, both foreseen and unforeseen. Once you sufficiently identify your Medicaid or Estate Planning needs, you should sign a POA as soon as possible (assuming the litmus test is met) so that if there is a need to implement or continue your estate plan after your possible incapacity, your child can effectuate under your POA, as much as possible, your wishes.

If you need help with this or other Elder Care Matters, you can find thousands of Elder Care Professionals on ElderCareMatters.comAmerica’s National Directory of Elder Care / Senior Care Resources for Families.

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