The Future of Long Term Care in America
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.com – America’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
Henry C. Weatherby, Esq,, CLU, ChFC, CEBS
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 ElderCareMatters.com and on ElderLawAttorneys.us – 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.
“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.
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.
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.com – America’s National Directory of Elder Care / Senior Care Resources for Families.
Trustee Held Responsible for Excessive Distributions
By Ronald A. Fatoullah, Esq.
Being a trustee is not a simple task. Trustees of special needs trusts (SNT) must be careful to explore the possibility of using government benefits to pay for expenses of the beneficiary, or risk having to reimburse the trust for having misspent trust assets.
On June 25, 2013, a New York trial court ordered a trustee of a SNT to reimburse the trust for nearly $180,000 that was misspent on private caregivers, cab rides, and medications that could have been obtained from government sources.
The beneficiary of the trust was injured as a child. In 2003, $422,012.54 from the beneficiary’s personal injury lawsuit was placed into a special needs trust for his benefit. The trust specifically stated that the trustees had to make a good-faith effort to determine whether Medicaid would cover home health care services prior to expending trust funds for that purpose. The trust also required that the trustees take the beneficiary’s eligibility for government benefits into account before making discretionary payments to him or to his family.
By 2009, only $3,253.03 remained in the trust. When BNY Mellon, the trustee, filed an order requesting that the court approve its account and release it as trustee, the court opened an investigation. The independent examiner discovered that BNY Mellon had paid for $118,064.50 worth of home health care without making an inquiry into whether the beneficiary could qualify for Medicaid payments for his care. BNY Mellon had also paid for $56,320 worth of cab fares for the beneficiary’s family and had made payments to the family that rendered the benefiary ineligible for SSI and Medicaid.
The Supreme Court of New York, Kings County, ruled that BNY Mellon must repay the trust for $176,905.99 that it improperly spent while it was trustee. The court found that “it is clear that the trustee relegated [its duties] to others, failing to make the necessary inquiries to ensure the longevity of the Trust Fund. It is clear to the Court that BNY breached its duty under the Trust agreement and failed to properly administer the Trust.”
A special needs trust, also known as a supplemental needs trust, is a trust specifically designed to preserve the assets of a disabled person without jeopardizing his or her eligibility for government benefits. This enables the disabled person to have a better quality of life by having the funds in the SNT to supplement “luxury” expenses that are not covered by any governmental program.
Not only is it prudent, but it is a requirement that a trustee explore the possibility of a governmental program being able to cover certain expenses of the beneficiary. For example, Medicaid can pay for home care services if the beneficiary needs them. Furthermore, if a beneficiary is already receiving government benefits, the trustee must ensure that the trust distributions do not disrupt the beneficiary’s continuing eligibility. For example, if a beneficiary is receiving Supplemental Security Income (SSI), the trustee may not want to use trust funds to pay for expenses of shelter or food for the beneficiary, as those payments will affect SSI benefits.
Whether you are currently serving as trustee or are considering accepting an appointment as a trustee of a SNT, it is important to consult with an elder law/special needs attorney regarding your duties and obligations as the trustee. An experienced attorney can also advise you about the various government benefits that you should be mindful of when making decisions about distributions.
To find Elder Law Attorneys and Special Needs Attorneys near you who can help you with Special Needs Planning, go to: ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Resources, including Special Needs Resources.
Ronald Fatoullah, Esq., CELA
Great Neck, New York
An ElderCare Matters Partner
Paperless World Can Leave Heirs In The Dark
By: Robert M. Slutsky, Esq.
As people increasingly go “paperless”, using the online features of banks and brokerages to manage their accounts, it’s complicating the process of helping your heirs sort out your finances once you’re gone.
The problem: If you don’t keep careful records, your family might not even know where to start looking for accounts. In a worse‑case scenario, some assets may never be found.
But at the same time, you don’t want to recklessly list all your private financial‑account passwords somewhere for a bad guy to find. That would be an invitation to theft.
There are several smart steps to take to build a roadmap to your assets. The five key components: information about your assets, names of advisers, details about safe‑deposit boxes, your estate planning documents, and a few other important documents.
For starters, provide details about banking and brokerage accounts, insurance policies, real‑estate and retirement plans, and list account numbers. Explain where to find your will, trust, power of attorney and other estate documents. If you have a safe‑deposit box, give the bank’s name and address, and where you keep the keys. If you have a life insurance policy, provide the name and phone number of the agent, and a copy of the policy or its number. Consider listing all the people your heirs will need to contact, including lawyers, accountants, executors or guardians you’ve named to care for any minor children. Do NOT include your passwords to online accounts. Listing all your passwords in one place, no matter where it’s stored, is risky. And anyway, your heirs won’t need them. With assets like bank accounts, heirs can usually gain access by showing a copy of a death certificate and proof of named beneficiaries.
Do include computer passwords, if you keep back copies of potentially important paperwork (like old tax returns) on your PC. Your financial planner or estate‑planning attorney can provide guidance in putting together a file meeting your needs.
Lastly, think carefully about how to store the list. Heirs need to be able to locate it when needed but it shouldn’t be generally accessible. One option: a fire‑resistant home safe. After all, you can’t take it with you B but you wouldn’t want someone else to take it from you.
Next: A Letter of Instruction Can Spare Your Heirs Stress
While it is important to have an updated estate plan, there is a lot of information that your heirs should know that doesn’t necessarily fit into a will, trust or other components of an estate plan. The solution is a letter of instruction, which can provide your heirs with guidance if you die or become incapacitated.
A letter of instruction is a legally non‑binding document that gives your heirs information crucial to helping them tie up your affairs. Without such a letter, it can be easy for heirs to miss important items or become overwhelmed trying to sort through all the documents you left behind. The following are some items that can be included in a letter:
1. A list of people to contact when you die and a list of beneficiaries of your estate plan;
2. The location of important documents, such as your will, insurance policies, financial statements, deeds, and birth certificate;
3. A list of assets, such as bank accounts, investment accounts, insurance policies, real estate holdings, and military benefits;
4. The location of any safe deposit boxes;
5. A list of contact information for lawyers, financial planners, brokers, tax preparers, and insurance agents;
6. A list of credit card accounts and other debts;
7. A list of organizations that you belong to that should be notified in the event of your death (for example, professional organizations or boards);
8. Instructions for a funeral or memorial service;
9. Instructions for distribution of sentimental personal items;
10. A personal message to family members.
Once the letter is written, be sure to store it in an easily accessible place and to tell your family about it. You should check it once a year to make sure it stays up‑to‑date.
If you need additional information about this or other Elder Care Matters, go to http://www.eldercarematters.com/ – America’s National Directory of Elder Care / Senior Care Resources.
Robert M. Slutsky, Esq.
Robert Slutsky Associates
Plymouth Meeting, Pennsylvania
An ElderCare Matters Partner
Identifying and Avoiding Caregiver Burnout
By: Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Many of our clients are caring for or being cared for by a loved one. More than 65 million Americans care for family members who need assistance due to chronic conditions, disabilities, disease, or the frailties of old age. These millions of family caregivers may include spouses, parents, or children of the person receiving care. Even when family members are not providing direct care themselves, they are often still the ones who arrange for and manage the care their loved ones need. These people are still part of the caregiving team and share in the emotional and financial stresses that can result from being a caregiver. Caregivers are often so focused on the needs of the person for whom they are caring that they forget to care for themselves. This puts them at risk for caregiver burnout.
Caregiver burnout is the physical and mental exhaustion caused by the prolonged stress of being a caregiver. If you are a caregiver, you may not even realize that what you are experiencing is burnout or that there are things you can and should do to make things better. If you are acting as a loved one’s caregiver, be alert for signs that could indicate that what you are feeling is more than just being a little bit tired. Take a look at the following list of symptoms of caregiver burnout to see if any of them apply to you:
If some of these symptoms apply to you, there is something you can do about it:
1) Protect your health. See your doctor regularly, eat a healthy diet, get sufficient rest, and make time to exercise. Stress doesn’t just affect you emotionally; it can also take a physical toll.
2) Develop a strong support system. Find a support group where you can share your situation and learn coping strategies. Talk to supportive friends and family. See a counselor or therapist to help you deal with the emotional impact of being a caregiver.
3) Accept help! Share responsibilities with other family members and friends. Forgive yourself for not being able to do everything – no one can. Giving yourself a break will allow you to be a better caregiver to your loved one. Learn to say no when your responsibilities become too much and identify people you can reach out to when you need a hand. Look into respite care, a short-term care arrangement that can provide a break for family caregivers. The time period for respite care can vary from a couple of days to a couple of months. It can also take different forms. You may prefer to find an in-home option or choose to arrange a temporary stay at a local assisted living community.
4) Stay involved with the things that make you happy. Make time for your hobbies and other interests. Read a book. Take a yoga class. Meet a friend for dinner or a movie. Don’t count running errands or doing chores as a break. Take a real break from time to time and do something for yourself.
If you need additional information about this or other Elder Care Matters, go to www.ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Professionals.
Henry C. Weatherby, Esq., CLU, ChFC, CEBS
Weatherby & Associates, PC
An ElderCare Matters Partner
Do It Yourself Estate Planning – Gone Wrong
By: Anne R. Moses, Esq., CELA
Beginning your estate plan requires that you follow certain tips:
If you prepare your own Will from a form on the web, you have no legal advice, and no one is checking to make sure the information is complete and correct. You will not be able to take advantage of the knowledge an estate planning attorney can provide about income and estate taxes and other options that may be available – such as certain trusts to protect minors or disabled individuals, to protect profligate spouses or children; to minimize capital gains tax; to protect an elderly person from financial abuse; and to ensure that a subsequent marriage by your spouse will not undermine your plan.
Here is a list of some of the simplest mistakes that I have encountered, and the family comes to me, after your death, to settle everything:
I’m just getting started! Protect yourself and your family. Don’t try this at home. Engage an attorney who knows what he or she is doing about estate planning; who will ask the right questions and give you the opportunity to think through the issues as you may never have before. Does it cost money? Yes. So does fixing the mistakes! And it’s a lot more money than the original plan.
If you need additional information about a wide range of Elder Care Matters, go to www.ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Professionals.
Anne R. Moses, Esq., CELA
Moses & Moses, P.C.
An ElderCare Matters Partner
Physician, Heal Thyself
Lifecare Innovations, Inc.
Burr Ridge, Illinois
Member of the national Panel for Elder Care Answers
This article, written by Shay Jacobson, President of Lifecare Innovations, shows the restorative power of guardianship, and demonstrates that the old proverb – Physician, heal thyself – while honorable in its original meaning, may not be quite so honorable in practice.
Imagine a physician, beset by psychiatric problems, who determines her best option is to treat herself.
Delusional, paranoid, in the throes of an unwanted divorce and thoroughly estranged from her children, Dr. S took out her prescription pad and went to work.
Dr. S. developed her own treatment plan for the paranoid schizophrenia that had de-railed her life and damaged her relationships. The results were disastrous. Her illness escalated and the tenuous control she once had over her unraveling life vanished entirely.
This 55-year-old physician was reported to the guardianship court by her divorce attorney. The attorney was trying to represent Dr. S’s best interests as her husband, also a physician, sought to end their lengthy marriage. As a wife, her behavior and ability to comprehend the division of their considerable assets was in question, and her attorney believed she needed a surrogate to help protect her interests in the settlement.
Bugged and Bellicose
The case was complicated by Dr. S.’s severe paranoia. She believed her home was bugged and sought refuge in hotels. She relocated to a different hotel nightly, and at no small cost. She was frequently MIA and would resurface when she caused disturbances that required police intervention. Suffice to say, Dr. S was slightly famous among local hotel clerks, and well known to law enforcement.
Dr. S. was estranged from her two adult children who each fled across the country to establish lives that were not controlled by their mother’s chaotic mental illness. Although they both loved their mother, they believed sharing in her life would destroy theirs. They flatly refused to participate in the guardianship hearing but provided collateral information to verify the extent of her illness and its startling progress.
The guardianship proceeding started with an extensive psychiatric assessment and included a thorough review of her recent medication history. It was at this time that Dr. S’s proclivity for self-prescribing came to light. Also discovered was her uncontrolled diabetes. The court approved a private guardian of person and a bank to act as guardian of estate; each of these entities would represent her interests in the divorce proceedings.
The tangle we encountered at the start of this case was difficult to unwind. Dr .S. was a prominent social figure; she sat on many boards and ran for local political positions. She continued to privately write prescriptions for herself and others, including psychotropic medication. The guardian had her medical license revoked and also withdrew her from local political posts. The divorce was finalized and the rebuilding process commenced in earnest.
The Doctor is Out
As with most adults who obtain a guardianship through contested court procedure, Dr. S. was a reluctant client, to say the least. Her mental illness interfered with her perception of her situation and distorted her understanding of the need to establish a new approach to life and her problems. Every effort to knit her life back together was met with staunch resistance.
As her guardians, we kept reminding ourselves that the only way to climb a mountain was by putting one foot in front of the other. We began by helping her manage her diabetes. Fluctuating blood sugars clearly added to her confusion.
Once the medical situation was stabilized, we developed a plan of treatment to address her mental illness. The illness had been long and ruinous for her. Her children reported that her paranoia had caused the estrangement and spanned at least 15 years. They felt the situation was hopeless and that their mother would never again be a part of their lives.
All of Dr. S’s self-prescribed medications were discontinued and her physician admitted her for medication stabilization. She was discharged to her home with 24-hour in-home care to maintain supervision. She placed in excess of 200 phone calls a day to our offices, the courts, and her attorneys. And then the miracles started to happen.
The new medications, delivered in a careful regimen, started to calm her paranoia. With her blood sugars and paranoia under control, she started to take a reality-based look at the rubble left by 15 years of unmanaged mental illness. A sweet and highly intelligent woman by nature, she was shocked at what she saw and began to recalibrate her thinking. Step by step, she regained her insight. We were able to decrease her in-home care to come-and-go caretakers.
Her friends started coming back into her life one at a time.
Restored At Last
We kept in constant contact with her children. They were afraid that this transformation would be temporary and that further disappointment was inevitable. Over time, though, they risked re-involvement and initiated weekly phone calls with their mother. There was a lot of catching up to do as their mother was not a part of their lives and did not know about their marriages and the birth of her first grandchild. They finally took the step to have her visit and from there, the healing process accelerated.
Dr. S. saw renewed purpose in life and worked hard to stay well and strengthen her family ties. We, as guardians, changed our plan to reflect this new reality. We began the restoration process. Dr. S. was fully restored just three years after the initiation of the guardianship.
The rest of the story continues to unfold. Dr. S.’s husband divorced her over her mental illness. As she recovered, so did their relationship. Dr. S. remarried her husband after her restoration. Today she is working toward restoring her medical license and she continues to have her medical and psychiatric treatment managed by professionals.
Our once recalcitrant and delusional ward joined us in our office to celebrate her restoration. She looked and felt wonderful. She remains close to the caregiver who spent many hours sorting through her issues with her during the worst times. She sees her children regularly and has become a doting Grandma.
The story of Dr. S is about many things, but the greatest of these is restoration – specifically, the restorative power of guardianship.
You can find help for this and other elder care matters on America’s National Directory of Elder Care / Senior Care Professionals – ElderCareMatters.com.
Caregiver Agreements: Making the Pathway of Caregiving
a Two-Way Street
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.
To find elder care professionals near you who can help you with this and other elder care matters, go to: ElderCareMatters.com – America’s National Directory of Elder Care / Senior Care Professionals and Resources for Families.
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