The Legal Checkup Blog
Great article in Mass Lawyers Weekly - it shows some of the great advocacy of MassNAELA.
As the summer winds down, parents and their teens are crowding stores like Walmart and Bed, Bath & Beyond for comforters, scatter rugs, microwaves, and other items to make the cramped living quarters of a dorm room feel like home. Students feel excitement and anticipation for the new chapter that is about to unfold, with more independence and autonomy over their day to day lives. For parents, move-in day typically brings mixed emotions. It is the day we hoped for and the day we dread all at once. Many parents think back to their own college experiences and the realization that it is not all about the books, and can only hope that their children exercise good judgment and make smart decisions.
Parents know that many things can go wrong, and while we hope there are no serious issues, we need to send our children off to college prepared. Independence sounds great until a student realizes his or her bank account is negative or, worse, ends up in an emergeny room.
Make sure your child is truly prepared for college. If your child is 18 or older, he or she should execute a Health Care Proxy (appointing a surrogate decision maker) with a HIPAA Release (release under health privacy law that allows medical providers to speak with you or another designated person in an emergency) and a Durable Power of Attorney to provide you or someone else with the authority to deal with their college or other entities for financial and contractual issues. (Believe it or not, while the tuition bill is sent to your attention, the school staff will not even speak to you about the account without express authorization from your child.)
These documents are not expensive and do not require a lengthy appointment. It would be far more expensive and inconvenient to respond to a child's emergency without these important documents in place. They can typically be drafted after a brief phone consultation, and will be reviewed for accuracy when the child comes in to sign them.
For more information, call us today at 781-681-6638.
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.
Please send me an email (to firstname.lastname@example.org) 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
Today I begin my term as President of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). I look forward to a productive year of advocacy ahead and hope you will help with one of our current goals, which is to educate the public about unethical ads that prey on the vulnerabilities of seniors and people with special needs. You've heard the ads on the radio, seen the flyers or newspaper ads.
The attorneys/companies who place these ads make false promises, create false impressions, and use scare tactics to instill fear in their intended audience.
* These ads make the nursing homes sound like money-grubbing thieves -- when the reality is that the caring staff of nursing homes provide 24/7 care to people who are unable to remain safely in the community. Should the nursing homes provide this care for free? You can bet that the attorneys who place such ads do not provide their services for free. In fact, if you consider the cost of some of these ads (many thousands of dollars), it suggests that these scare tactics are having the desired effect.
* These ads give the false impression that seniors can remain in full control of their assets AND protect those same assets from the cost of long-term care (not true!).
* The ads of a few elder law attorneys place all elder law attorneys in a bad light by emphasizing "protecting assets" above all else, when the reality is that protection of the client is the paramount concern for most elder law attorneys.
MassNAELA works hard to advocate for seniors and people with special needs, but this task is made much more difficult by offensive ads that encourage people to do whatever is necessary to make sure they won't "lose their assets to the nursing home" - in other words, let the state pay it all.
This emphasis hurts everybody because care providers, judges, and legislators have begun to see elder law attorneys as the enemy -- doing nothing more than "hiding" assets from the nursing homes. This could NOT be further from the truth, however. Most elder law attorneys focus on protecting the client, not the assets. Most elder law attorneys provide comprehensive guidance and advocacy to clients, and if asset protection is part of a comprehensive plan, it is only done with full understanding that any assets that are "protected" from the cost of nursing home care are NOT fully available to the client for their future needs. Any ads that suggest one can protect assets and retain full control of the assets are misleading at best.
We need your help to spread the word regarding ads that use false claims and scare tactics. Share this message with your loved ones. If you work with seniors and their families, you have the opportunity to share MassNAELA's message with them.
If you or someone you know has a concern about a particular ad, feel free to send it to me at email@example.com.
Planning is important, whether it is advance planning or crisis planning, it is important to seek professional guidance. Just be aware that if something seems too good to be true, it probably is. If something makes you feel rushed, anxious, or bullied, you should walk away. Get a second opinion. Feel free to call my office for guidance, or you can find a MassNAELA member in your area at www.massnaela.org.
Happy New Year to you all! Make 2014 the year you get your affairs in order.
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.
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:
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.
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
SEMINARS AND WORKSHOPS
Next LEGAL CHECK UP Boot Camp to be held
Wednesday, November 6, 2013
10 am - 12 pm
SPACE IS LIMITED - PRE-REGISTRATION IS REQUIRED
Attendees of this free comprehensive workshop will learn the important considerations for a successful Estate and Long-Term Care Plan. Part of the workshop will be interactive to allow attendees to discuss general problems, concerns and situations.
This workshop will cover:
*what estate planning documents you need in order to achieve your goals and objectives;
* how to properly select Agents, Personal Representatives, and Trustees;
* whether you need a Will, a Trust, or both;
* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)
* how to protect your home and other assets;
Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.
For more details and to sign up go to:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Health Care Proxy, Last Will & Testament, disability planning, Medicare, Community Care, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, long-term care planning
Rockland- Aging is BIG business. The key word here is "business."
With the demographics as they are, people living longer, boomers coming of age, new products and services are introduced each day for seniors and their caregivers. Many of these products and services are fantastic and live up to their promises. Others, however, rely on fancy web sites and literature, celebrity endorsements and microscopic disclaimers to make a sale. These tactics are successful because they play on the vulnerabilities of the target audience, often when they are most overwhelmed and desperate for help.
Perhaps you are caring for your spouse who is suffering from Alzheimer’s or some other chronic condition. Maybe you are looking for guidance because your parents are no longer safe in their home. Whatever your situation, you need to be an informed consumer. You’ve got to ask some important questions in order to properly assess whether a product or service is right for you or your loved one.
In this first of a three-part series, we’ll discuss some of the hidden issues and questions that seniors and their caregivers need to consider asking in order to make educated, informed decisions.
Let's start by dispelling the myth that anything in business is "free." Let’s face it - if something was truly free, the provider would be a charity rather than a business. Once you accept that businesses exist to make money, you will want to understand how companies are being paid in order to determine whether the product or service will benefit you. You need to ask questions and demand answers. Below are a few common examples.
Senior Living Referral Services. Each morning while I am having my coffee and watching the news, I see the commercial with Joan Lunden promoting a “free senior living referral source.” And, each morning, I want to yell at my TV, frustrated that the consumer is not being provided with the full story. Sure, there is likely a disclaimer in print so small that it is illegible, but let’s face it - nobody is reading the fine print, even if it is large enough to see. Viewers trust Joan Lunden because they watched her for years on morning TV. They trust her because she tells about her own struggle to find the right resources for her aging mother, and that is very compelling. I went to the web site for this company to research a bit further and found the following disclaimer – again, in print so tiny and a font so light I had trouble reading it: “Our service is offered at no charge to families as the communities and providers in our network pay (our) fee …” We do not own, operate, recommend, or endorse any of these communities or providers.”
So, if a senior living referral source such as this does not recommend or endorse any of the communities they refer you to, you need to ask some questions in order to determine if this service will benefit you. Consider asking them the following questions:
1) If you do not recommend or endorse any of the facilities you will refer me to, what are the criteria that you use? Is it solely that they pay a fee for the referral?
2) How much will you be paid by a facility if my loved one is placed there?
3) Are there other facilities in the area that you have not referred us to and, if so, why not? Is it solely that they have not agreed to pay a fee for the referral?
4) Will you put the criteria you are basing the referral on in writing?
Web-based senior planning resources. These sites are multiplying like rabbits on the web, each promising to be the hub of information and a central place to locate quality geriatric care managers, elder law attorneys, assisted living facilities, nursing homes and more. Some of these sites do provide valuable information to seniors and caregivers but, again, you must understand how they are getting paid. Ask the following questions:
1) Do the “experts” on your site pay to be designated as experts?
2) If not, what is the criteria one must meet to qualify as an “expert?”
3) Do providers (geriatric care managers, elder law attorneys, facilities, etc) pay to be listed on your site, or to be highlighted or listed first in search results?
4) How do you ensure that the information listed on your site is current and accurate?
5) Can you guarantee the security of any personal information I provide through the site? How?
6) Do you share my information with any other person or entity?
7) Do I have to register or sign up in order to use the site?
One site that I recently tested asked for far too much personal information. In order to request information from a specific elder law attorney, for example, site users are asked to provide the name of the person they are concerned about and the details of their condition. It is unclear who receives the inquiries submitted online or whether this personal information is protected. This particular site also offers a forum for family members to share information and communicate about their loved one – to list doctor appointments and medications, post estate planning documents, etc. This sounds great in theory, but there is no guarantee that the communications are private or secure. There are a number of other forums where family members can communicate without going through a web-based senior planning site such as this, and I caution you not to provide any personal information on such a site unless your questions are answered to your satisfaction, preferably in writing.
Personally, I believe the best way to contact a professional is directly, with no third-party intermediary. The best resource to find an elder law attorney is through the Massachusetts Chapter of the National Academy of Elder Law Attorneys, at www.massnaela.com (or www.naela.org in other states). A qualified geriatric care manager can be found through the National Association of Professional Geriatric Care Managers at www.caremangers.org. You can research assisted living facilities through www.massalfa.org (Mass Assisted Living Facilities Association), and nursing homes through www.medicare.gov/nursinghomecompare. Nursing Home Compare provides you with the most recent inspection results for all nursing homes in the state, including any deficiencies you should be aware of.
There is nothing wrong with companies trying to make a profit by providing products and services that address the needs of seniors and their caregivers. But, it is up to you to look beyond the celebrity endorsements and glitzy marketing. It is up to you to determine if “experts” earn their designation through knowledge and experience, or by paying a fee to be listed as such; whether a referral service will refer you only to facilities that pay a fee to be included. If the fancy marketing and celebrity endorsements give you one impression, but the fine print says something completely different, you need to ask questions and demand answers before proceeding. Remember, businesses are in business for one reason - to make money. You must understand how they are being paid in order to truly understand if the product or service offers value to you.
Note: In our next post, we will discuss financial services sales and MassHealth application prep services.
Tags: PACE, home care, long-term care, asset protection, Legal Check Up, Estate Planning, skilled services, Community Care, Elder Financial Abuse, loved ones, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning
MASSACHUSETTS CHAPTER OF THE NATIONAL ACADEMY OF ELDER LAW ATTORNEYS (MassNAELA)
CONTACT: Beth Bryant, 508.786.3013
October 31, 2012
MASSACHUSETTS ELDER LAW GROUP’S SEVEN-YEAR DRIVE FOR LONG TERM CARE INSURANCE BILL FINALLY LEADS TO PASSAGE
Governor Deval Patrick Signs Bill Protecting Seniors From Losing Their Homes, Originally Filed by the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA)
BOSTON – October 31, 2012 – The Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) today announces a legislative victory for seniors, as Governor Deval Patrick has signed into law a bill protecting individuals from losing their homes if they choose to use long-term care insurance for community-based care before entering a nursing home. Bill S.2359 grants an exemption from MassHealth estate recovery claims whether an individual uses their long-term care insurance for at-home or nursing home care. Prior to this bill, the MassHealth estate recovery exemption only applied when long-term care insurance policies were used for nursing home care.
Working with Senator Harriette L. Chandler, MassNAELA advocated for the passage of this bill, part of which was originally filed in 2005. The bill, signed into law by Governor Patrick as “An Act Establishing Standards For Long-Term Care Insurance,” also includes important consumer protection for purchasers of long-term care insurance. The Act enables MassHealth Medicaid recipients who have purchased long-term care insurance policies to use their policies for home care coverage without forfeiting estate recovery protection. This legislation allows seniors and disabled persons to seek care in their home instead of nursing home care and reinforces the incentive to purchase long-term care insurance.
“Before this new law, those who chose to use their long-term care insurance to pay for care in their home rather than a nursing home could lose their estate recovery exemption if their insurance benefits fell below qualifying levels before they entered a nursing home,” states Philip D. Murphy, Esq. President of MassNAELA. “Now, when a person buys a qualifying long-term care insurance policy, his or her home is protected from estate recovery whether the insurance is used to pay for care at home or in a nursing home. The exemption of a person’s home from estate recovery after he or she dies is a strong incentive for a person to buy qualifying long-term care insurance. More people should buy long-term care insurance under the new law, thereby saving MassHealth some long-term care costs. This is a win-win for elders and MassHealth.”
An advocate for quality of life for seniors, MassNAELA has filed several bills and been a significant force behind legislation focused on improving the ability of elders to remain financially independent and in their home while dealing with the cost of long-term care. In 2008, the organization won passage of H.975, a bill exempting MassHealth applicants from paying fees for retroactive bank records, which was signed into law by Governor Patrick as Chapter 125 of the Acts of 2008.
The National Academy of Elder Law Attorneys, the premier organization of elder and special needs law attorneys in the country, is dedicated to developing awareness of issues concerning the elderly and those with special needs. Over 500 attorneys are members of the Massachusetts Chapter, which comprises 12% of all NAELA members nationwide. They work directly with the elderly and those with special needs in areas as diverse as planning for catastrophic care costs, disability planning, age discrimination in employment and housing, benefits planning, estate planning, veterans’ benefits and more. For more information about MassNAELA, visit www.massnaela.com.
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, disability planning, Medicare, skilled services, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Medicaid Home Care, Estate Planning, long-term care planning