The Legal Checkup Blog

Guardianship law expected to bring order out of ‘chaos’

Posted by Judith Flynn on Sat, Nov 01, 2014 @ 19:11 PM

Great article in Mass Lawyers Weekly - it shows some of the great advocacy of MassNAELA.

 
BAR APPLAUDS GUIDELINES FOR SETTLING JURISDICTIONAL SPATS
By: Pat Murphy October 16, 2014

Massachusetts judges will receive long-overdue guidance for resolving jurisdictional disputes when the new adult guardianship law goes into effect Jan. 1, while... guardians and conservators should find it easier to perform their duties across state lines, elder law attorneys say.

Signed by Gov. Deval L. Patrick on Aug. 5, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act provides a clear mechanism for deciding whether Massachusetts or another state should have jurisdiction when an incapacitated elderly person or disabled adult has contacts with multiple states.

In addition, the measure provides procedures for guardians and conservators to more efficiently exercise their authority outside the jurisdiction of the state in which they were appointed, while establishing a mechanism for transferring a guardianship or conservatorship from one jurisdiction to another.

“The act will let conservators and guardians focus more on the care of the individual rather than on dealing with the courts to get additional appointments,” said Judith M. Flynn, president of the Massachusetts chapter of the National Academy of Elder Law Attorneys.

MassNAELA joined the Massachusetts and Boston bar associations, Massachusetts Guardianship Association, AARP and other groups in supporting the reform measure.

Attorney John J. Ford advocated for passage of the act asdirector of the Elder Law Project for the Northeast Justice Center in Lynn. Ford said the statute will bring order to a “very chaotic” system in which Probate & Family Court judges “winged it” in the absence of a law providing clear guidance on addressing multi-jurisdictional disputes.

“The new law describes what the court is supposed to do in determining which state should have jurisdiction and whether the authority of a fiduciary appointed in another state should be conferred in Massachusetts,” Ford said.

West Springfield attorney Eileen Sullivan-Boss has been looking forward to the state’s adoption of the measure since the Uniform Law Commission finished drafting the model law in 2007.

“I can’t see any attorney who practices in this field as being anything but grateful for the adoption of this act,” said Sullivan-Boss, who in addition to practicing elder law is a registered guardian and member of the Massachusetts Guardianship Association.

Jurisdictional clarity

The Legislature enacted the legislation as Article 5A of G.L.c. 190B. The centerpiece of the law is the jurisdictional provision, §5A-203, which establishes a three-level priority for determining what state has jurisdiction over a protected person who is elderly or disabled.

Under §5A-203, the individual’s “home state” has primary jurisdiction to appoint a guardian or conservator, or enter a protective order. Section §5A-201(a)(2) defines “home state” as the state in which the adult who needs a surrogate decision-maker is “physically present.” The home state priority continues for up to six months following the individual’s move to another state.

Section §5A-203(2) provides secondary jurisdiction for a “significant-connection state,” which generally applies if the individual has not had a home state within the past six months or the home state has declined jurisdiction.

Section §5A-201(a)(3) defines “significant-connection state” as a state other than a home state with which the individual “has a significant connection other than mere physical presence.” The statute lists factors such as family ties, the location of the individual’s property, tax filing and voter registration as factors to consider for determining whether a significant connection exists.

Thirdly, the jurisdictional provisions operate to allow a state court in Massachusetts to exercise jurisdiction if the home state and all significant-connection states have declined jurisdiction because the commonwealth is the more appropriate forum.

Importantly, the act also allows for a state court to exercise special jurisdiction under extraordinary circumstances, such as the need for the appointment of a guardian in an emergency.

Flynn said it was critical that the act created a clear framework for state courts to resolve jurisdictional questions given the fact that today’s population is mobile and it is not uncommon for people to move from state to state and own property in different states.

“A court now has a lot of flexibility in determining whether to accept a case or to determine that it’s not the appropriate jurisdiction, or to make emergency orders in the meantime until another court is able to get involved,” Flynn said.

Out-of-state enforcement

The statute also will go a long way toward enabling guardians and conservators to perform their duties across state lines more efficiently. Conservators are appointed to administer the property of an adult; guardians make decisions regarding the person of an adult, such as medical care.

Ford said that Massachusetts courts in the past were often at a loss as to what to do when a guardian from another state sought to exercise his authority in the commonwealth on behalf of an elderly or disabled person.

“What do you do? Do you have authority to consent to medical treatment? Do you have authority to place her in a nursing home? All those questions were unanswered,” Ford said.

Section 5A-401 authorizes guardians appointed in other states to register guardianship orders in the commonwealth. Similarly, under §5A-402, conservators appointed in other states may register protective orders here.

Under the act, the effect of registering such orders is profound. Section 5A-403(a) provides that, upon registration of a an order from another state, “the guardian or conservator may exercise in the commonwealth all powers authorized in the order of appointment except those powers prohibited under the laws of the commonwealth.”

Flynn said that means those appointed as guardians and conservators in other states will no longer be required to apply separately for appointment in Massachusetts simply to have orders enforced. She noted that the appointment of a guardian or conservator in Massachusetts would similarly be honored in any other jurisdiction that has passed its own version of the statute.

“If I’m appointed in Massachusetts, but my protected person has property in another state, in the past I would have to go seek an appointment in that other state in order to sell the property,” Flynn said. “Now, there is a process under this act where you can just file your Massachusetts appointment in that other jurisdiction in order to accomplish what you need to accomplish.”

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has been passed in 39 other states. All the New England states, with the exception of New Hampshire and Rhode Island, have enacted the model law. A bill to adopt the act was introduced in the Rhode Island General Assembly earlier this year.

Transferring authority

Another central feature of the act is its provision for the transfer of guardianships and conservatorships from state to state when an incapacitated individual is expected to move.

Section 5A-301 sets forth procedures for the transfer of guardianships or conservatorships to another state, while §5A-302 provides for the acceptance of guardianships or conservatorships transferred from another state.

“The law provides efficiency, and with efficiency comes lower costs to the estate of someone with limited resources who is elderly or otherwise incapacitated,” Sullivan-Boss said.

“It can also be quicker,” she added. “You may have a person who is in an unsafe situation in another state and you want to transfer the guardianship.”

Sullivan-Boss said she also likes the fact that the new law encourages Massachusetts’ courts to communicate and cooperate with courts from other states.

Section 5A-104 expressly authorizes a court in Massachusetts to communicate with a court in another state concerning a proceeding arising under the act. In addition, Section 5A-105 authorizes courts here to request a court in another state to perform various tasks, including holding evidentiary hearings, compelling depositions, ordering mental evaluations, or ordering the production of financial records.

“The law facilitates communication between the courts to enhance protections for a vulnerable person with decisional incapacity,” Sullivan-Boss said.

She said it is important that the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act authorizes courts to sanction parties that engage in wrongful conduct in seeking to invoke the jurisdiction of the commonwealth’s courts.

Section 5A-207(a) permits a court to decline to exercise jurisdiction over a guardianship or conservatorship in the event of “unjustifiable conduct.”

Moreover, §5A-207(b) authorizes a court in Massachusetts to assess “reasonable expenses,” including attorneys’ fees and costs, in the event it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct.

The threat of sanctions can be important in dissuading family members from engaging in needless litigation over guardianship and conservatorship matters regarding a loved one, Sullivan-Boss said.

“Remember, the costs associated with litigation are going to reduce the resources that person needs for support,” she said.

Tags: elder law, Legal Check Up, Legal Documents, lack of capacity, Estate Planning

Important Things to Review During Medicare Open Enrollment Period

Posted by Judith Flynn on Wed, Oct 22, 2014 @ 11:10 AM

Great article with important advice in US News and World Report, by Emily Brandon

Medicare beneficiaries will get an opportunity to make changes to their Medicare Part D coverage between Oct. 15 and Dec. 7, 2014. Many retirees will experience premium increases, changes in covered drugs and new cost-sharing requirements if they don’t switch plans. Here’s what you should review during the annual open enrollment period so you can select a new prescription drug plan if necessary.

Covered medications. Prescription drug plans are permitted to tweak the roster of medications they cover each year, and it’s important to double-check that your current medications and any new prescription drugs you expect to use in the coming year will be covered. "The first thing people should look at is whether all of their prescriptions are on the formulary,” says Casey Schwarz, policy and client services counsel at the Medicare Rights Center, an advocacy organization. “A plan can have very low premiums, but if the drug you would like to take is not on the formulary and not covered, then it is not such a good deal.”

Premium prices. The average Medicare Part D monthly premium will increase by 4 percent to $38.83 in 2014, assuming beneficiaries remain in their current plan, according to an analysis of 2015 Part D plans by researchers at Georgetown University, the University of Chicago and the Kaiser Family Foundation. However, beneficiaries in six of the most popular Part D plans will see their premiums increase by at least 10 percent, and one Part D plan increased premiums by 52 percent. About 1.5 million beneficiaries (8 percent) will experience a premium increase of $10 per month or more, while 985,000 beneficiaries (5 percent) will experience a premium decline of at least $10. “You have to weigh the amount of the change in premiums versus the inconvenience of making a shift,” says Jack Hoadley, a health policy analyst at Georgetown University and co-author of the report. “We know that some people are looking at premium increases that can be as much as $20 a month or more. In those kinds of situations, the payoff for making a switch can be substantial. If the change in your premiums is only a dollar or two, it may not be worth making a change.”

Cost-sharing changes. Prescription drug plans change the copayments and coinsurance associated with covered drugs each year. For the first time in 2015, all Part D plans will use tiered cost-sharing. Most plans have five tiers, including two for generic drugs, two for brand-name drugs and one for high-cost specialty drugs. Medications in each tier have different out-of-pocket costs, ranging from copayments to passing along a percentage of the bill to beneficiaries. “There are likely to be changes in the cost-sharing amounts that plans charge for drugs, drugs taken off the formulary and new utilization management tools like prior authorization,” says Juliette Cubanski, a policy analyst at the Kaiser Family Foundation. “Even if people are happy with the coverage that they have now, it does make sense to take a little bit of time to look at your coverage and see how it might be changing and see how your needs have changed.”

Deductibles. Most part D plans (58 percent) charge a deductible, which is typically a standard amount of $320 (44 percent). However, 14 percent of plans will charge a smaller deductible next year, up from 4 percent in 2014. “Plans that do lower or eliminate the deductible typically make other changes that might actually translate into higher costs for people,” Cubanski says. “While it might look appealing not to have that deductible, if the premium is so much more expensive that you end up paying more on an annual basis, that might not be a very good value payoff for people to be making.”

Preferred pharmacies. The majority of prescription drug plans (87 percent) now offer beneficiaries lower cost-sharing requirements if they fill their prescriptions at selected network pharmacies, up from 72 percent in 2014 and just 7 percent in 2011. For example, the AARP MedicareRx Saver Plus prescription drug plan charges a $20 copayment for a preferred brand drug at a preferred pharmacy, but the cost jumps to $45 at another in-network pharmacy that is not preferred. And beneficiaries enrolled in the Humana Walmart Rx prescription drug plan pay $1 for preferred generic drugs and $4 for non-preferred generics at a preferred pharmacy, versus $10 and $33, respectively, at other in-network pharmacies. “It’s important to understand if the pharmacy where you go to fill your prescriptions is part of the network of plans with the preferred cost-sharing,” Cubanski says.

Medication restrictions. Some Part D plans require beneficiaries to get prior authorization before they will cover certain drugs, require patients to try a lower-cost drug before paying for an expensive medication or limit the amount of medication you can buy at one time. “It may be worth paying a little bit more to get the one that doesn’t include the restrictions,” Hoadley says.

Consider other options. There will be just over 1,000 prescription drug plans offered nationwide in 2015, and Medicare beneficiaries will have a choice between an average of 30 plans. You can view the coverage options in your area using the Medicare Plan Finder at medicare.gov/find-a-plan. “Each year, plans make adjustments to their premiums, their formularies and whether they have prior authorization or other restrictions on use, and what worked for a person who was taking a particular array of drugs last year may not work for them this year,” Hoadley says. “It’s worth seeing if there is money to be saved or better coverage to be acquired.”

Tags: elder law, Legal Check Up, Medicare, nursing home

PLEASE CALL YOUR REPRESENTATIVE TODAY!!!

Posted by Judith Flynn on Thu, Jul 24, 2014 @ 14:07 PM

RE: H1366, Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA)

 

The Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) asks for your immediate advocacy to help get the UAGPPJA passed.  On July 10th, it passed the Senate, and it is currently being considered by the House Ways and Means Committee.  This bill is poised to pass the House, but we need your support NOW because July 31st marks the end of formal sessions for the 2013-2014 session.


We can get this important legislation passed, but we need YOUR help NOW.  Every phone call is critical!

PLEASE 1) call your representative and ask him or her to contact Speaker DeLeo in support of Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

2) Then call Speaker DeLeo's office yourself and urge him to support passage of this bill.   The main number at the State House is (617) 722-2000.


Following is a summary of why this legislation is so important:

While the UAGPPJA provides much needed clarity and a mechanism to establish the most appropriate forum for each case, it also provides significant discretion to the Massachusetts Courts to accept or reject jurisdiction of any matter based on the specific facts.  Judges may exercise temporary orders as appropriate for the protection of respondents pending transfer to or acceptance by another jurisdiction.   

 

The UAGPPJA will enable communication and cooperation between courts, simplify procedures for guardians and conservators to act in multiple jurisdictions when necessary (for example, if the protected person has real estate to be sold in another state), and facilitate acceptance and enforcement of guardianship and conservatorship orders in other states.  The UAGPPJA even authorizes the courts to decline jurisdiction or impose other appropriate remedies if jurisdiction is acquired by unjustifiable conduct, an issue of growing concern among elder law attorneys who see elders being improperly subjected to the guardianship process as the result of family disputes.

 

The UAGPPJA provides real solutions with no budget attached.  It will minimize the financial and emotional burden on elders and their families who would otherwise have to initiate a second court proceeding simply to satisfy a Registry of Deeds, a care facility, or a financial institution that refuses to honor an out-of-state guardianship or conservatorship order.  The UAGPPJA would be a win for our clients and their families, as well as the Commonwealth.


PLEASE HELP US TO ADVOCATE FOR PASSAGE OF THE UAGPPJA!!  THANK YOU!

 

 

Tags: elder law, lack of capacity, Elder Financial Abuse, undue influence, rights, exploitation

Your advocacy is needed TODAY!

Posted by Judith Flynn on Tue, Jul 01, 2014 @ 08:07 AM

MassNAELA and elder law attorneys across the Commonwealth continue to advocate for a number of bills.  In the meantime, the Conference Committee on the FY2015 Budget has been released and is in the process of being enacted and sent to the Governor for his review.  Some of its provisions are of interest to elder law attorneys and those we serve:

 

1.    The Mass Health Senior account (4000-0600) contains language preserving the Personal Needs Allowance (PNA) at $72.80.   (This is the amount a nursing home resident may keep each month from their income if he or she has MassHealth coverage.  It is used to pay for hair or barber services, toiletries, clothing, etc)

 

2.    The Senior account also contains nursing home bed hold language requiring nursing homes to hold beds for medical leaves not less than 10 and up to 20 days.  (Again, this applies to nursing home residents whose care is covered by MassHealth.  This bed hold is critical for quality of life and dignitiy, allowing residents to return to the same bed and room they resided in when they were hospitalized.  The nursing home is their home, just like your home or mine, and it can be devastating to one's mental and physical well-being if they lose their "home" due to a hospitalization.  This would be more likely if the bed-hold provision was not retained.

 

3.    The budget requires written informed consent of a nursing home resident or his guardian/health care proxy prior to the administration of psychotropic medication.  This is an important protection for nursing home residents, and this written informed consent ensures that such drugs will not be administered just to make residents easier to deal with, or to avoid the cost of implementing other measures to deal with the symptoms for which these medications have been abused in the past.

 

4.    The budget requires the Department of Public Health (DPH) to implement a public process for the granting of nursing home licenses and transfers of ownership.

 

PLEASE CALL THE GOVERNOR'S OFFICE TODAY - TELL HIM YOU WANT THESE PROVISIONS TO STAY AS IS (PNA OF $72.80, A 10-DAY MINIMUM BEDHOLD, PRIOR WRITTEN CONSENT TO ADMINISTER ANTI-PSYCHOTIC MEDICATIONS, AND A PUBLIC PROCESS FOR THE GRANTING OF NURSING HOME LICENSES AND TRANSFERS OF OWNERSHIP).  His contact information is:

Office of the Governor
Phone: 617.725.4005
888.870.7770 (in state)

Thank you for your support!

Tags: long-term care, elder law, skilled services, nursing home, rights, Medicaid, respect for elders

Wrongful Intent to Discharge Is Elder Abuse

Posted by Judith Flynn on Mon, Jun 09, 2014 @ 10:06 AM

I just received confirmation from a new client that the nursing home has rescinded its notice of Intent to Discharge her grandmother.  While this is great news, and our advocacy has paid off, this case represents a disturbing trend.

 

This is the third case in the past six months in which I was hired to advocate against a wrongful notice of Intent to Discharge an elderly resident of a nursing home on the basis of non-payment.  In all three cases, MassHealth coverage was in place, but there was an outstanding balance ranging from $6,500 - $13,000, for a period prior to the MassHealth approval.  In all three cases, the amount owed represented the Patient Paid Amount (PPA) for a period prior to the time when the client received a notice from MassHealth informing them of their duty to pay a set amount each month.

 

Most people are aware that there is a duty to pay something each month under the Medicaid regulations based on their income less any allowed deductions (the PPA).  Clients are certainly advised of this when working with an elder law attorney and most nursing homes will inform clients of this duty when they are assisting with the application.  (As a side note, I advise against using the nursing home or a non-attorney service that they may refer you to, but that is a separate topic.)  There are instances when the client is not informed in advance, however, through no fault of their own. 

 

By the time the client receives a notice informing them that MassHealth benefits have been approved, and detailing the amount that must be paid each month RETROACTIVELY to the date of eligibility (which could be as much as four months prior to the date of application), the funds may not be there to pay the outstanding PPA.  If a client is not informed that they must hold the funds or pay an estimated PPA each month while the application is pending, they may not have the funds available by the time they receive the notice from MassHealth.

 

In all three of these cases, the balance was owed not because funds were gifted and not due to misappropriation of funds.  The clients were simply not informed that they would need to pay a PPA back to the date of requested eligibility.  The nursing home assisted with the application in one case, and referred the clients to a Medicaid service in both other cases.  Nobody told the client to pay an estimated PPA while the application was pending or to hold the monthly income pending the approval from MassHealth.

 

In the most recent case, when MassHealth ultimately issued an approval notice and indicated the resident's duty to pay a PPA each month going back a couple of months, the nursing home continued to bill for the outstanding balance.  They sent a threatening letter to the resident's granddaughter, who managed the resident's checking account.  She tried to explain the situation to the nursing home administrator, and showed the bank records documenting where the funds went - they were not gifted - they were used to purchase items her grandmother needed.

 

When the granddaughter explained that she had four children and worked full time and barely made ends meet, and simply did not have the funds to pay the nursing home the outstanding amount, the nursing home issued a Notice of Intent to Discharge the resident for non-payment.  My client's grandmother is still mentally competent, so the law required that the nursing home staff serve the notice on her directly.  Imagine the fright my client's 88 year old grandmother experienced when she was handed a notice informing her she was going to be discharged from the facility that had been her "home" for the past two years.

 

To make matters worse, the notice indicated that the facility planned to discharge the resident to her granddaughter's home 30 days later (the law requires 30 days notice).  My client had informed the facility that she could not take care of her grandmother and, furthermore, that the setup and amount of stairs in her three-level condominium was an unsafe environment.  Her grandmother would require two people to assist her with transfers in and out of bed or up and down the stairs to the bathroom.  The facility knew that a discharge to my client's home would not be safe.  They knew that my client worked two jobs to make ends meet.  They knew that she did nothing wrong in this process, and that they had actually failed to inform my client that they were filing a conversion from community MassHealth to long-term care MassHealth on her grandmother's behalf, so she should either pay an estimated PPA from that point on or hold the funds pending the approval.  While they are not solely to blame either, they are more responsible for the situation than my client, yet they issued this notice to try to bully my client to find a way to pay the outstanding balance.  I find this tactic to be nothing short of elder abuse!

 

The time, energy, and expense the facility expended to pursue a wrongful discharge of this resident would have been better spent developing a better system to ensure that this problem does not happen again with another resident.  I am not un-sympathetic to these facilities.  I know that they suffer as a result of the delays and abuses in the MassHealth system.  So do my clients. But, I suggest that we would all fare better if we communicated in a collaborative manner to address these recurring issues, rather than defensively on a case by case basis.

 

Tags: long-term care, elder law, duress, Elder Financial Abuse, family, nursing home, rights, admission agreement, Medicaid, exploitation

What happened to basic respect for our elders?

Posted by Judith Flynn on Sat, Mar 15, 2014 @ 13:03 PM

I had to go to the Registry of Motor Vehicles the other day, and knew it was not a good sign when I had to wait in line just to get in the door. After approximately 15 minutes in line just to receive my bakery-like number, I wandered around looking for a place to stand.

 

The benches were fully occupied, mostly by 20 and 30 somethings, talking loudly on their iphones and not concerned that the masses were not interested in their activities of the prior evening, or how the boyfriend or girlfriend about whom they were speaking had disrespected them. Belts are apparently a luxury rather than a necessity these days, as I observed more undergarments than I would have preferred.

 

After an hour or so I was able to grab a spot on a bench when the prior occupant's number was called. As I looked around, however, several elderly people had joined the crowd, two with canes. I watched for a few minutes to see if any of these fine young folks would offer a seat and, much to my disappointment, they did not.  An elderly couple was on the opposite side of the room, so I waved them over and gave the woman my seat. Her husband was so appreciative, gushing at the gesture I had made to offfer this 80-85 year old woman with a cane my seat.

 

I find this entire experience to be very disturbing - both the fact that I was the only one to offer a seat to someone like this, and the fact that these elders were so genuinely surprised by the gesture. The act of a younger person offering their seat to an older or frailer person should not be surprising - it should be expected.  

 

There is no doubt in my mind that any of my three children would offer their seat to an elderly or disabled person, or any person in need, and there are many other fine young people who would do the same. But, I find the fact that basic manners and respect for our elders is becoming the exception rather than the rule to be very sad. 

 

 

 

Tags: elder law, Legal Check Up, priorities, respect for elders, manners

Register Now for the MassNAELA Breakfast to be held March 6, 2014

Posted by Judith Flynn on Fri, Feb 14, 2014 @ 07:02 AM

Each year, MassNAELA holds a "scattered site" breakfast that is open to non-attorneys and non-members.  It is held on the same morning in four parts of the state, and provides a wonderful opportunity for MassNAELA attorneys and other professionals who work with seniors to network. 

This year the breakfast program will be hosted at the following locations:

Armbrook Village in Westfield, The Village at Duxbury in Duxbury, Whitney Place in Natick, and Woodbridge Assisted Living Facility in Peabody.  The substantive program will be "The Affordable Care Act, Medicare, and Medicaid - Everything You Need to Know," with a panel of experts at each location. 

A special rate of $30 is available to guests of a MassNAELA member if paid by February 28th.  If you would like to attend as my guest at the Duxbury location, please download the form below, complete it, and send it with your payment as indicated on the form before the deadline. 

http://www.thelegalcheckup.com/Portals/106531/docs/140306 MassNAELA breakfast registration.pdf                                               

Please send me an email (to jflynn@thelegalcheckup.com) to let me know that you will be attending as my guest.  I hope to see you there for this important topic and great networking!

                                                     -- Judy Flynn

 

 

Tags: home care, long-term care, elder law, Legal Check Up, Medicare, Community Care, Medicaid, Estate Planning, long-term care planning

SENIORS NEED TO BE WARY OF LONG-TERM CARE ADVERTISING USING SCARE TACTICS

Posted by Judith Flynn on Fri, Dec 13, 2013 @ 10:12 AM

Sara and Ralph, a couple in their late 70’s, were perusing the newspaper one Sunday when they saw an advertisement about nursing homes and long-term care costs that grabbed their attention.  The ad, which was placed by a lawyer, claimed that their home could be sold at auction and that they could be left homeless and penniless if they did not take action. The ad caused Sara and Ralph to fear losing their home and savings.  It used scare tactics and preyed on their emotions and potential vulnerabilities.

While it is true that good estate planning techniques can protect assets, including the home, from the cost of long-term care, ads like the one that frightened Sara and Ralph violate the Aspirational Standards of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA).

MassNAELA is an organization of Massachusetts elder law attorneys working to assist elders, as well as elder law attorneys, as they navigate the maze of long-term care options.  We encourage seniors and their family members to be leery of such ads using worst-case scenarios and scare tactics regarding the costs of long-term care.  MassNAELA’s Aspirational Standards regarding marketing and advertising urge all elder law attorneys to do the following in advertising and marketing:

• Consider the potential for marketing to educate the public and to promote the profession of elder law;
• Prepare or disseminate only marketing communications that are truthful and do not include statements that are false or misleading in any material respect;
• Take into consideration the intended audience for any marketing communication and, in particular, the potential vulnerability of that audience to undue influence;
• Ensure that no materially false or misleading information is communicated in connection with a seminar, presentation, or similar activity; and
• Accurately describe legal concepts, procedures, programs or techniques in all marketing communications.

MassNAELA encourages high standards of technical expertise and ethical awareness among its members and all attorneys who practice elder law in Massachusetts, but we cannot “police” long-term care advertising. We can only inform and educate.  The consumer has the power to choose whether to respond to such advertising. 

Choices involving long-term care and planning are difficult and there are no “one size fits all” answers.  It is important for seniors to consult with a reputable elder law attorney who can provide honest and complete advice on nursing home costs and planning options available in a particular situation, and to realize that if an ad uses scare tactics that cause anxiety, they should not take the bait.  Responsible attorneys will not make you feel rushed, bullied, or unnecessarily fearful. 

PLEASE help us to educate the public about unethical advertising.  Share this message with everyone you know – especially those who are the intended target of such advertising.

Tags: long-term care, asset protection, elder law, Estate Planning, disability planning, Community Care, duress, undue influence, nursing home, Medicaid, long-term care planning

CMS announces 2014 spousal impoverishment standards

Posted by Judith Flynn on Tue, Dec 03, 2013 @ 08:12 AM

The cost of nursing home care, which is approximately $10,000 - $12,000 per month in this area, can quickly wipe out one's life savings.  In 1988, Congress enacted provisions to prevent what is known as "spousal impoverishment," or leaving the spouse who remains in the community with little or no income or resources. The provisions helped to prevent spousal impoverishment and provided some level of security for community spouses. 

Under the MassHealth regulations incorporating the spousal impoverishment provisions, a range of assets is allowed to be retained by the community spouse, and depending on factors such as income and living expenses of the community spouse.  There are additional provisions which provide for some of the institutional spouse's monthly income to be paid to the community spouse each month, or for excess assets beyond the maximum allowed to be retained to generate the needed income, in certain circumstances. 

The Centers for Medicare and Medicaid Services (CMS) have announced these and other spousal impoverishment standards for 2014, which you can see here:

http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Eligibility/Downloads/Spousal-Impoverishment-2014.pdf

 

 

 

Tags: long-term care, asset protection, elder law, Medicare, federal law, nursing home, Medicaid, Estate Planning, long-term care planning

This Black Friday, purchase an Estate Plan instead ...

Posted by Judith Flynn on Fri, Nov 22, 2013 @ 14:11 PM

I have seen it reported that consumers spent $59.1 BILLION last year on Black Friday.  $59.1 BILLION! 

This number is staggering to me, and even more so when I consider the significant portion of these sales that likely represents well-intentioned, but useless, gifts.  So many items will be returned because they are the wrong size, the wrong style, or just not something the recipient wants or needs.

 

Even worse, how many of you have received something that you would never wear or use, but you did not return it because you did not want to hurt the giver's feelings?  Perhaps you re-gifted the item the next year, but let's face it - there is a great deal of waste around the holidays, and the true meaning behind the gifting has been stampeded in a rush to get the best prices.

 

What concerns me even more is that many people take out loans or make these purchases on credit cards, digging themselves deeper into debt in the process.  This is not what the holidays are supposed to be about.  Thanksgiving is a perfect time to reflect as a family, and to take steps to put the meaning back in the holidays.

 

You may want to consider setting a dollar limit, or having a grab to reduce the number of gifts each person needs to buy.  You might consider implementing a new charitable tradition that the entire family can feel good about, such as making or purchasing items for nursing home residents who may not have family of their own, or for homeless families.  You could conduct a food drive to replenish the food pantries that are always in need, or send items to our troops who are in harm's way to protect our country.  The possibilities are endless, and these gifts are always the perfect fit.

 

Let me offer another suggestion.  Before you and your family spend hundreds of dollars on things you probably don't need, consider putting the money towards something you should all have in place.  If every member of your family age 18 and older does not have a basic estate plan in place, consider spending on that instead.  At the very least, you should each have a Durable Power of Attorney and a Health Care Proxy with a HIPAA Release, appointing one or more agents to make health and financial decisions for you if you become unable to do so.

 

You can get additional information on my website about estate planning, long-term care planning, and other services. 

 

www.TheLegalCheckUp.com 

 

Whether you will be part of the Black Friday stampede or collecting items for others, I wish you all a wonderful Thanksgiving!

Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Community Care, family, loved ones, Estate Planning, long-term care planning