Elder Law

By Susan M. Graham, CELA, Senior Edge Legal, Boise, Idaho

The U.S. Government has no money!   Can seniors expect help from the government to pay their long term care expenses? 

Who needs long term care?

People over age 65 have a 50-70% chance of needing care before they die.

What does it cost?

         At home:  $20 per hour to $15,000/month for 24-hour care

         Assisted Living:  $3,500 to $5,000 per month

         Skilled Nursing Care (Nursing Home) $6,000 to $10,000 per month

         Crabby/Difficult Senior:    $16,000 to $18,000 per month

What are the six ways to pay for care?

         Family and friends provide the care for free.

         Take money out of your pocket

          Long Term Care Insurance

          Medicare

          Veteran - Non Service Connected Disability (Aid and Attendance)

          Medicaid

How do each of the six ways work?

1. Family and friends provide the care for free. 

When a spouse becomes a caregiver, it increases the likelihood that they will die before the spouse who is being cared for.   If children are the caregivers, it ruins their lives.  They stop working early, lose out on wages and benefits, and have less time to spend with their own family and friends.  If they are paid without a written contract, this can create problems later if the person needing care wants to qualify for government benefits.

         2.       Pay “Out of Pocket,”  

Pay the expenses for you or your spouse from your funds until you run out of money.

         3.       Long-Term Care (LTC) Insurance.

You purchase LTC insurance.  You decide how much coverage you want in terms of a daily rate to pay for your care and for how long.  To qualify for and purchase LTC insurance, you need to be healthy and have the funds to pay the premiums.  Why buy LTC insurance?  You get the most flexibility to choose the location for your care and how the funds will be spent.  The worry about our government’s ability to pay for your care and everyone else’s care is lessened.

         4.       Medicare.

Medicare is a Federal HEALTH insurance program for people 65 and over.  

There is a short-term residential care component for Medicare if you qualify.   

                  You must be admitted to a hospital for 3 or more days. 

                  When you are discharged to a rehabilitative facility, you must participate in the rehabilitative activities and be improving.

                  If these two events occur, then Medicare will pay 100% for the first 20 days of rehabilitative care.  The bills I have seen for the first 20-day stay range from $6,000 to $30,000.

                  If you continue to be in rehab, Medicare will pay part and you or your supplemental health insurance will pay part of the bills for the next 80 days.

                  This benefit is being taken away with the hospital stating that a person is not “admitted” but rather is in the hospital for “observation.”  That means the patient is ineligible for Medicare coverage for subsequent skilled nursing care in a facility.

                  Also, this benefit is not available if the patient is not “improving” or participating in the rehabilitative activities.

         The result:  Seniors must pay for their post-acute care out of pocket or forego the treatment.

          5.  Veteran’s Non-Service Connected Disability (Aid and Attendance).

The Veterans program will help pay between $1,094 to $2,631 per month for long-term care in your home or a facility. 

How can this benefit be accessed?

         You or your spouse must be

                  Age 65 or older

                  Served 90 days on active duty

                  One day during wartime [1]

                  Received a discharge that is not dishonorable

                  Meet the income test

                  Meet the asset test

            6.  Medicaid (a loan program).

Medicaid is a State  and Federal program that provides for long-term residential care to people who are aged, blind or disabled.  Each state is responsible for administering the Medicaid prorgram in its state.  I will address the program for the “aged.”  Aged means someone is age 65 or older.

What is this benefit?  If a person qualifies, the benefit will pay for the cost of care in assisted living or a skilled nursing home facility that participates in the Medicaid program.  There are some funds to help pay for care at home, but frequently the payment is not enough to provide full care for an individual in their own home.

What does it take to qualify for Medicaid?

The applicant must be blind, disabled (using a social security definition) or age 65 or older.

                 The applicant must have a medical need.

 The applicant must pass an income test.  If they fail this test, it is often possible to take some steps to meet this requirement.

 The applicant has to meet an asset test. This test is complex and cannot be covered in this short article.

Once the Medicaid recipient (and their spouse) dies, the State is entitled to be reimbursed for the funds they paid out on behalf of the Medicaid recipient.

Summary:  What is the best way to plan for long-term care, when it is more likely than not to happen?

1. Consider LTC insurance, even if you think you can self-insure.

2. If it is too expensive or too late to get LTC insurance, contact an attorney who is familiar with Medicare, Medicaid and VA benefits to explore other alternatives.   Asset protection is only possible with the right tools.  The sooner planning is done, the more flexibility the individual and their family have for lifestyle choices and the greater the ability to protect a lifetime of earnings. 

3. A Family Legacy Trust may fit to preserve assets, and help pay for care.

4. Act now.  Don’t wait for a crisis, because then it may be too late to make choices that are best for the family.   Under the current law, to have the most flexibility in planning, it needs to start five years before a need arises.

This information is intended to be helpful and general and not intended as legal advice.   These rules for Medicare, VA and Medicaid benefits are complex and change frequently.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Paying for long-term care in a nursing home or assisted living facility is expensive.  It can range from $3,000 to $10,000 monthly.  What if the senior cannot pay the bills?

In 2011 a Pennsylvania nursing home received a $90,000 judgment against an adult child of a parent who had an unpaid nursing home bill. ^[1]  The suit was based on a law that states^[2]

 (a) Liability. --

(1) Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:

(i) The spouse of the indigent person.

(ii) A child of the indigent person.

(iii) A parent of the indigent person.

(2) Paragraph (1) does not apply in any of the following cases:

(i) If an individual does not have sufficient financial ability to support the indigent person.

(ii) A child shall not be liable for the support of a parent who abandoned the child and persisted in the abandonment for a period of ten years during the child's minority.

North Dakota has an old law adopted in 1877, which creates a duty to support a parent.  

“It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each.  This liability may be enforced by any person furnishing necessaries to that person.  The promise of an adult child to pay for necessaries furnished to the child’s parent is binding.”  North Dakota Statutes § 14-09-10

An article in the North Dakota Dickinson Press highlighted the potential that nursing homes are considering using this old law to recoup unpaid bills.[^3]

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

There must have been a secret mark on the front of my father-in-law’s house only visible to scam artists.   He lived alone and one day bought a freezer full of fish.  A month later, the same sales person sold him another freezer load of fish along with a second freezer to hold it.   Then there was the man who knocked on the front door and offered to paint his peeling front steps.  That person used his tools and paint, was paid and stole all of the tools from Dad’s garage. 

My neighbor’s wife died and he decided to continue to hire the caregiver who helped during the last months of his wife’s illness.  He did not need the help, but he felt sorry for her because she told him she needed the work to pay her bills, so he hired her for two days a week.  Later she was sad one day.  He asked why and she said she was behind in her rent, so he hired her an additional day, that he did not need.

My client, Betty, was in her 70s and lived alone.  Her grandson, George, had a drug habit and came over frequently, giving her a sad story of how he was short of money.  When her son, Bruce, noticed  $5,000 disappeared from her bank account in one month, he asked Betty where it went.  She made up a story, because she was embarrassed to admit she gave it to George.   The only way to stop this was for Bruce to be appointed by the court as Betty’s Guardian and Conservator.

Undue influence of elder persons is becoming an increasingly severe problem.  Through fraud, duress, threat, intimidation, emotional manipulation, isolation and other techniques that foster helplessness and dependency, unscrupulous perpetrators cheat vulnerable older persons out of their life savings.  This trend is increasing because those older than age 50 now control at least 70% of the nation’s household net worth.  Wealthy, and even middle class, older persons have become frequent targets for criminals, including family members and care givers, who want to divest them of their assets.

Legally, the concept of undue influence, particularly when it occurs to the competent elderly, is a difficult issue.  It should be suspected when significant others or caretakers develop trusting relationships that isolate the victim, foster a siege mentality, induce dependence, promote a sense of helplessness, hopelessness, or powerlessness, and manipulate the elderly person’s fears or instill new fears and vulnerabilities. 

We really are our brothers’ and sisters’ keepers and need to watch out for our seniors.  Early intervention and reporting can prevent devastating emotional and financial losses for older persons who have worked their entire lives to become financially independent.

__________________________

Source: 

Exploitation of the Elderly:  Undue Influence as a Form of Elder Abuse, by Ryan C. W. Hall, MD, Richard C. W. Hall, MC and Marcia J. Chapman.  Clinical Geriatrics, Vol. 13(2), 28-36; 2005

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

         Who knows where you keep your important papers?  In an emergency situation, valuable time could be wasted tracking down important legal papers.  Make it a point to tell your children, successor trustee or personal representative where they can find your original documents.  If you store those documents in a safe deposit box, or a safe at home, make certain they have the ability to get into the box or safe. 

         We frequently receive calls from our clients’ family members who want to know where they can find these documents, and they need them “now” because there is a family crisis.   There are legal limitations that tie our hands so often we cannot provide our copies to the family. 

         You do not have to tell anyone about the contents of the papers, just let them know how they can access them in an emergency.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

I walk my dogs every day.  We cruise the neighborhood.  Of course making it safe, but also noticing any changes or new things.  For the last month I have noticed piles of dirt around the wooden telephone poles.  It seemed odd to me.  Yesterday, I saw a young man digging around a pole.  I asked him why and he told me the city decided it is much cheaper to dig the dirt from around the wooden poles, treat the wood with something to stop any rot or bug infestation, wrap it in a special cloth and then refill the dirt.  This saves them loads of money because it is cheaper to maintain the poles, than it is to replace them.  Of course, that makes sense.  We have limited resources, and it is cheaper to take care of what we have, rather than let it fall apart and only notice when it fails.

How does this relate to you?  If you have gone to the trouble and effort, and paid for, an estate plan to help protect you and those you care about if you are ill or die, why not make certain it still works.  When the telephone poles were installed they were the best, but as time goes by things change.  The City still wants them to be the best and can help that happen with maintenance.  You, too, need to maintain your plan so that it works when you need it   How can you do this?  Set up a review appointment with your estate planning attorney to review your existing plan to determine if it covers your current circumstances and what you want to happen when you become ill or die.  If not, it is easy to make changes now before there is a problem.  The City is saving money and headaches.  So can you.

By Susan M. Graham, Certified Elder Attorney, Senior Edge Legal, Boise, Idaho

Whitney Houston’s Last Will and Testament is available on the internet and everyone can see the terms of her estate plan.  Her estate goes to her daughter and is managed until she is 30, with some assets going to her earlier.   Do you want your affairs made public?  There were similar news reports about the Last Will and Testament for Jackie Kennedy Onassis and Elvis Presley.   Every word of their Wills became public.

How does this happen?  When someone dies with a “Last Will and Testament,” their Estate must be probated in the local court.  This means the Will is filed with the court along with a petition requesting that the terms of the Will be followed and that someone nominated in the Will be appointed by the court to wind up the affairs of the deceased person.  All of these documents filed with the court become a public record and are available for anyone to view.  They just need to go to the courthouse and pay for copies.  

Maybe this is not a problem for some people.  But many of us would not be happy if the details of our personal lives were available for strangers to review.  It is none of their business.

If this is a concern of yours, you may want to consult with your lawyer about how to create an estate plan that keeps your affairs private and still accomplishes your planning goals.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho 

I talked to a wife this week who has been a caregiver for her demented husband for years.  Recently he has taken to getting up in the night and using firewood stored by the fireplace to start fires on the hearth and in the firebox!  Fortunately, his wife noticed both times and put the fires out.  She is grateful for these miracles but sees no need to change how they live.  

Her desire is to continue to care for and keep him at home with no help.   This is a dangerous plan for both of them.

Fortunately, their children and doctor have taken notice and are working to make changes that will result in a safer environment for each of them with plenty of help.

Hope is not a plan.  That approach is living in a fantasyland unrelated to real world events associated with ageing.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Marie died and $400,000, which was all of her estate, went to her son, Chris.  Chris was married to Jane and they had three children.  Chris died two years later giving all of his assets, including those he inherited from his mother, to his wife.  After a few years, Jane married Tim, a widower with one child.  Jane and Tim did not have a prenuptial agreement, and they just decided to put all the assets each of them owned in joint names.  Jane died a year after marrying and everything she owned went to Tim.  When Tim died everything went to his child.  Nothing went to Chris and Jane’s children. 

Do you want your son’s widow to give your son’s inheritance to her new husband rather than your grandchildren?  If not, you may want an “Inheritance Trust.”

Some other names for this type of trust are “dynasty,” “heritage,” or “legacy” trusts.

This trust provides powerful protection for the individuals who inherit from you.  How does an inheritance trust work?  Upon your death, the monies a person inherits from you will be deposited directly into this trust rather than being given to them out right.   The funds that are placed in this trust will be protected from divorces, creditors, lawsuits, and bankruptcy.

Using an inheritance trust, we will rewrite the story about Chris.   When Marie died, $400,000 went to Chris. This time Marie has created an irrevocable inheritance trust naming Chris as the Trustee and the sole beneficiary during his lifetime.  When Chris dies, whatever remains in this Trust will go to his three children.  Marie dies, and Chris puts the $400,000 in this inheritance trust.  Chris decides how the funds will be invested, and he has the right to withdraw the money under certain circumstances. When Chris dies, those funds will go to his children and stay in Marie’s family. This trust provides extraordinary protection for Chris because the money will be protected should certain life tragedies occur, such as a serious illness, financial reversal or divorce.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Life gets away from us with endless distractions every day.  Here are seven easy steps you can take to be certain some of the most important parts of your life stay organized.

1. Keep your important papers in one place and tell someone where they are located.  These papers may include some or all of the following:  birth certificates, marriage certificates, death certificates, divorce decree, military discharge papers, life insurance, car titles, deeds, your Last Will and Testament, a Revocable or Irrevocable Trust, financial power of attorney, health power of attorney, living will, Physician’s Order for Scope of Treatment (POST), funeral plans, health insurance, long-term care insurance, a list of your bank accounts, retirement accounts, and other investments, along with a list of your charge card numbers.

2. Sign a financial power of attorney, which allows the people you select to handle modest financial transactions for you if you are not able. 

3. In addition, sign a health power of attorney appointing someone to make health decisions on your behalf if you cannot communicate effectively.

4. Sign a “living will” to elect the type of care you want to receive when you are on your deathbed.  If you fail to have a “living will,” under Idaho law the legal and medical systems require at a minimum that you receive nutrition and hydration with tubes (nose or stomach tubes).  The other two choices are to use all the fancy machines to keep you going as long as possible, or skip the tubes and fancy machines, and just keep you comfortable and “let me go.”

5. Sign a Last Will and Testament or a revocable Trust so that your wishes will be followed when you die as to who will be in charge, and who will receive your “stuff” [the ring and gun] as well as who will receive your estate.

6. If you have a safe deposit box, or a safe at home, make certain someone else has the ability to access them if your are ill, out of town or die. 

7. If you have pets, make arrangements for their care if you are unable to care for them due to illness or death.

Lastly, mark your calendar for a year from now to review this list and up date your affairs.  That way you will stay organized and prepared which creates security for your future.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

My 69-year-old Cousin in Seattle called on Sunday to update me with his bad news.  His mother died on Thursday, his daughter was engaged to an unemployed plumber who has 2 young children, and my Cousin was diagnosed with diabetes.  I asked if he had paperwork in effect to help address some of these issues and, like most people, he said “No.”   He did tell me he is “thinking about” doing something. 

Are you over 65 with no plan for your future? 

Do you want to be in charge of your life for the rest of your life? 

Wishing does not make it so.  Put a plan in place to make that happen.

What “parts” does your plan need to take the mystery out of tomorrow and replace it with confidence and security?   Everyone needs to start with the basics.  First, decide and sign papers that set out who will handle your health decisions and finances if you are unable to help yourself.   Most of us do not plan to die tomorrow, but it is a guarantee it will happen some day and you get to elect who gets all your things, from a ring to a bank account.  At a minimum, you need a Last Will and Testament to fully accomplish your plan of who inherits from you when you are gone.

Get started on your plan now.  How?

Contact your Certified Elder Law Attorney to discuss where you are, what you want to accomplish with the rest of your life, and discover the best strategy to get where you want to go.

Stop wishing, and do something NOW!  Take the steps to help yourself have a more secure future.