The Legal Checkup Blog
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, Elder Financial Abuse, family, loved ones, Medicaid, Medicaid Home Care, improvement standard, undue influence, rights, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, long-term care planning
Most seniors I speak with feel that they have worked hard their entire lives, and that they should not have to spend all of their hard-earned assets on nursing home care. They would like to pass some assets on to their children or grandchildren.
The problem with this, however, is that without proper guidance and advocacy, many seniors are often rushed into an Asset Protection plan that “protects the assets from the nursing home" and "protecs the assets for their children or grandchildren" ... and leaves the senior unprotected and vulnerable. They fall victim to the many misleading ads in print on the radio that make false claims about asset protection, use scare tactics that are simply unconscionable, or offer deep discounts to sign up "today only." No attorney worth dealing with is going to use any of these tactics to get your business. Let me explain.
There are THREE FUNDAMENTAL RULES that you must understand about ASSET PROTECTION ...
1) You have not “protected” an asset until you have given it away, either to a person or a trust, with no legal right to change your mind and take the gift back in the future.
2) There is a five-year lookback period, which means that MassHealth can look at all of your financial statements going back five years, and they will impose a penalty for any gifts you made during that five years. So, the assets are not fully protected until FIVE YEARS after you give them away.
3) You could unintentionally be forced to a nursing home if you run out of funds to pay for continued care in your home. If you “protect” assets by giving them away and getting through the five-year lookback period as outlined above, you will have no legal right to get the assets back and you may be left "unprotected" and unable to pay for the care you need to remain in your home.
Certainly it is not any senior's intent to end up having to move to a nursing home because they "protected" their assets years earlier ... but it happens. Part of the problem, in my opinion, is the prevalence of misleading ads that serve to scare and confuse seniors.
BEWARE of legal ads that encourage you to “Protect your Assets” while leading you to believe you are protecting yourself in the process … this is one example of an ad that I find to be very misleading, if not absolutely FALSE.
Learn about Asset Protection Trusts that:
1) allow you to control your assets until death;
2) allow you to retain all income from your assets
3) enable you to protect your assets from the nursing home
4) ensure you qualify for Medicaid in the shortest period of time
Let’s look back at the Fundamental Rules of Asset Protection.
Number 1 is FALSE because, while you may serve as trustee of the asset protection trust, it is not YOUR assets that you are controlling ... you gave the assets to someone else in order to "protect" them!
Number 2 is FALSE because, while you can retain the right to the income generated by the assets in an asset protection trust, the assets in the trust are no longer YOUR assets! You gave the assets to someone else in order to "protect" them!
Number 3 is TRUE and FALSE - True because after five years the assets will be protected from the cost of your nursing home care, but FALSE because, once again, they are not YOUR assets any more -- you gave them to someone else in order to "protect" them.
Number 4 is FALSE because there is a 5 year lookback. Assets transferred to an asset protection trust will not be fully protected until 5 years after they are transferred to the trust, and there is no attorney who can make you eligible with this strategy in less than 5 years. In fact, there may be ways to make you eligible sooner based on your specific situation, but not with an asset protection trust.
Some asset protection strategies may be appropriate for you, but only if you can ensure your own future security in the process. This is why a comprehensive assessment of your specific family situation, health and care needs, income and assets, and goals is critical to a successful Long-Term Care Plan. A Legal Check Up will enable you to fully understand the risks and benefits and pros and cons of asset protection strategies, and will enable you to make an informed decision based on your specific situation.
Remember, if a radio or print ad seems too good to be true, it probably is. And, if an attorney offers a discount on the cost of an asset protection plan, but the price is good "today only ..." RUN, don't walk, to another elder law attorney. These pressure and scare tactics are not appropriate and, frankly, offensive to most elder law attorneys. Your future security must be treated with the importance and thoughtful deliberation it deserves, by you and your attorney.
Call us today at 781-681-6638 to schedule a Legal Check Up or to get a schedule of upcoming seminars, or get more information at www.thelegalcheckup.com.
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, Elder Financial Abuse, family, loved ones, priorities, Medicaid, Medicaid Home Care
The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.
The event will include speaking remarks from:
•Supreme Judicial Court Chief Justice Roderick L. Ireland;
•Chief Justice for Administration and Management Robert A. Mulligan;
•MBA President Richard P. Campbell; and
•Boston Bar Association President Lisa Goodheart
The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709
You can sign up in advance to meet with your legislators, or just drop by their offices. The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.
For your convenience, you can find the list of Senators at:
and the list of Representatives at:
Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance. We hope to see many of you there to support funding for the Massachusetts courts!
Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.
I've heard many excuses for putting off long-term care planning, including:
"I'm never going to a nursing home."
"I have Medicare."
"I have my child's name on all of my accounts, so the state won't count those funds"
"I'm a veteran, so the VA will take care of all of my long-term care needs."
"My kids will take care of me."
"I don't have enough assets to worry about."
"I put my daughter's name on all of my accounts and she will divide everything equally among all my kids when I die."
"I have my assets in a revocable trust, so they are protected."
"I am leaving everything to my son so he can take care of my child with special needs."
"I don't want to hurt any body's feelings so I just won't do any thing."
"I'll do it LATER."
You've probably used a few that aren't on this list too. But, guess what? LATER has come. LATER is TODAY.
The Elder Law Office of Judith M. Flynn has developed a new workshop to help seniors get their affairs in order. The Legal Check Up Boot Camp (c) is a free, comprehensive workshop to give seniors all the knowledge they need about Estate and Long-Term Care Planning.
This workshop will empower the attendees to stop procrastinating and finally take control of the decisions they have been avoiding for too long.
This four-hour workshop will be taught in two sessions of two hours each. Part of the workshop will be interactive to allow attendees to discuss particular 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, Executors, 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 about the Boot Camp or to register, go to:
Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, family, Medicaid, Medicaid Home Care, skilled services, rights, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Veterans Benefits, Personal Care Assistance Program
Hot off the press from the State House News Service:
The Patrick administration has struck a $26.75 billion deal with the Obama administration that the governor says will set the stage for a "new round of innovations" in Massachusetts's health care system and that federal officials say will serve as a precursor to sweeping changes in the way health care is delivered in the Bay State.
The deal, a three-year Medicaid pact authorized by the U.S. Department of Health and Human Services, represents a $5.69 billion, 26.2 percent increase over the last three-year deal, which was approved by the administration of President George W. Bush in 2008. The last waiver deal, a three-year pact approved in 2008 by the Bush administration, was valued at about $21.2 billion and hailed as a victory for state health programs by Gov. Deval Patrick and U.S. Sen. Edward Kennedy.
The new deal was reached last week when Patrick met with U.S. Secretary of Health and Human Services Kathleen Sebelius in Washington D.C., and details were finalized in the days since the meeting, according to an administration official.
MassHealth, the state's Medicaid program, provides 1.3 million low-income or disabled Massachusetts residents with subsidized coverage and has been a major part of the state's efforts to provide near-universal coverage.
Under the terms of the deal, also known as a Medicaid waiver, safety net hospitals in Massachusetts - including Boston Medical Center and Cambridge Health Alliance - will be required to make major changes to the way they deliver health care in order to access a $120-million-a-year pot of funds. The changes include moving away from a health care system that pays doctors based on the volume of tests they perform, rather than the health outcomes for their patients.
Gov. Patrick has pressed lawmakers to act on a bill that would make this shift the norm in the Massachusetts health care industry, but the Legislature has deferred action until next year.
Under the waiver, Massachusetts will establish a pilot program aimed at expanding coverage for pediatric asthma services. This provision of the waiver closely mirrors a Medicaid program adopted in a state budget 18 months ago aimed at preventing unnecessary hospital admissions for pediatric asthma patients. The state will also "streamline eligibility procedures" for about 140,000 parents with children who receive food stamps, and the waiver also covers expanded "early intervention" services for children with developmental delays and disabilities.
Massachusetts officials also withdrew a number of requests, according to the federal Centers for Medicare and Medicaid Services, which sent a letter to Patrick administration health and human services chief JudyAnn Bigby. The withdrawn proposals include integrated care for residents eligible for both Medicare and Medicaid, which the Patrick administration plans to tackle independently.
The administration had also requested the ability to increase pharmacy co-pays "above allowable State plan levels" and to institute a co-pay for non-emergency medical transportation," according to the letter. The Medicaid waiver, a critical element of Massachusetts health care financing scheme, was due to be finalized in July, but negotiators sought a series of one-month extensions, unable to reach agreement as news of major pressure to cut federal spending dominated the dialogue in Washington.
Proponents of the deal said it would preserve the state's health care programs established in 2006, when Gov. Mitt Romney signed a health care law intended to guarantee access to insurance for nearly all Massachusetts residents. Since the law was signed, about 411,000 previously uninsured residents obtained health care coverage, and the Patrick administration estimates that 98 percent of all residents are insured. The cornerstone of that legislation, a health insurance exchange called Commonwealth Care, served as a model for exchanges included as part of the federal Affordable Care Act signed by President Obama nearly two years ago. Commonwealth Care helps enroll low-income residents in heavily subsidized private insurance plans. Commonwealth Care and a separate program that covers care for a diminishing pool of uninsured residents will receive $500 million a year, under the new waiver deal.
The Patrick administration has also committed to implementing all provisions of the Affordable Care Act by Jan. 1, 2014, when most major provisions of the federal law take effect. The waiver may carry some political significance heading into a presidential year, as Romney campaigns for the Republican nomination to take on President Obama. Romney has repeatedly been forced to defend the health care law he signed as an affordable plan that works for Massachusetts. But critics say the state's programs survive because of a broad lifeline provided by the federal government, a critique unlikely to be quelled by the major increase in Medicaid funding announced Tuesday.
Tags: PACE, home care, long-term care, elder law, Legal Check Up, Estate Planning, Medicare, Community Care, priorities, Medicaid, Medicaid Home Care, termination of benefits, skilled services, federal law, rights, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Personal Care Assistance Program
The holidays are a perfect time to give the gift of Peace of Mind. PEACE of MIND gift certificates provide you with an easy way to initiate a positive conversation about estate and long-term care planning, and encourage your loved ones to get their affairs in order.
Your loved ones will not be offended by this thoughtful gift that still leaves them in control. Best of all, it will not need to be returned because it is the wrong size or color (although it can be returned if they choose not to use it, of course).
Exclusively from the Elder Law Office of Judith M. Flynn, PEACE of MIND Gift Certificates may be purchased in any dollar amount, or for specific services such as:
* a Legal Check Up;
* Estate Planning Package (including Probate Avoidance and Tax Minimization);
* Asset Protection Package
* Special Needs Planning Package;
* College Student Health Care Proxy/Durable Power of Attorney Package.
Contact us today to learn more at http://www.thelegalcheckup.com/contact-us/
Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, family, Medicaid, Medicaid Home Care, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, nursing home
A great decision just came down from The United States District Court for the District of Vermont in the class action lawsuit known as "Jimmo" vs. Kathleen Sebelius, Secretary of Health and Human Services. The Defendant's Motion to Dismiss the case for Failure to State a Claim was DENIED.
For more details, go to www.thelegalcheckup.com/legislative-alerts/
SOCIAL SECURITY ADMINISTRATION ANNOUNCES 3.6 PERCENT BENEFIT INCREASE FOR 2012
Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012, the Social Security Administration announced today. The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011. Some other changes that take effect in January of each year are based on the increase in average wages. Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $110,100 from $106,800. Of the estimated 161 million workers who will pay Social Security taxes in 2012, about 10 million will pay higher taxes as a result of the increase in the taxable maximum. Information about Medicare changes for 2012, when announced, will be available at www.Medicare.gov. For some beneficiaries, their Social Security increase may be partially or completely offset by increases in Medicare premiums. The Social Security Act provides for how the COLA is calculated. To read more, please visit <http://www.socialsecurity.gov/cola>.
We all want to age in place in our own homes, on our own terms -- any place other than a nursing home. Sometimes situations change quickly, however, and for a number of reasons it just may not be possible to remain safely in the community. It is at these times of crisis that folks often discover that all the ideas they had about their long-term care security and how they would pay for nursing home care if needed are basically … well, wrong. There are five major payment sources for nursing home care, each worthy of its own full-length column, but I offer the following brief summary to help dispel some of the myths on this topic.
The most common misconception I hear from seniors is that Medicare is going to cover all of their nursing home costs. This simply is NOT true.
Medicare will only cover “skilled” care, and only if all of the following conditions are met:
You have Medicare Part A (hospital insurance) and have days left in your benefit period;
You have a qualifying hospital stay, which is an inpatient stay of three consecutive days or more, starting with the day of admission and not including the day of discharge. (ALERT: If you are held for “observation” for part of your hospital stay prior to being admitted, you may not have met the minimum requirement. This is an issue that should be promptly appealed.)
Discharge to the rehabilitation facility either directly or within 30 days;
Your doctor orders the services you need for SNF care, which require the skills of professional personnel such as registered nurses, LPNs, phsyical, occupational, and speech therapists, and are furnished by or under the supervision of these skilled personnel;
You require the skilled services on a daily basis (5 days per week qualifies).
The availability of 100 days is not, however, a guaranteed coverage period of 100 days. In fact, it is far from guaranteed with the average period of SNF care covered by Medicare being only 23 days. You must also qualify according to the clinical criteria set forth by Medicare. Medicare requires the facility to conduct periodic assessments of your condition and goals to determine whether you will be approved for extended skilled coverage.
Medicare will pay the full cost for days 1-20, and you will be responsible for a significant daily copayment from days 21-100. Medicare does not pay beyond the 100-day period, unless you have a break in your coverage for at least 60 days. In that case, with the above conditions met again, you would have a new 100-day period available.
(ALERT: If you receive a Notice of Medicare Provider Non-Coverage informing you that your Medicare coverage will terminate because you have “reached a plateau,” “are stable,” “custodial care” or not improving, consider filing an immediate appeal. If you need continued skilled services in order to maintain your present condition, then you are entitled to continued coverage under the Medicare Act and federal law.)
Nursing home care is not automatically available to all veterans enrolled in the VA health plan. Only the following veterans automatically qualify for unlimited nursing home care:
Veterans who are seeking nursing home care for a service-related condition;
Veterans with a service-connected disability rating of 70 percent or more;
Veterans who have a service-connected disability of 60 percent and are unemployable;
A service-connected disability is a disability that the VA has officially ruled was incurred or aggravated while on active duty in the military and in the line of duty. The VA must rule that your illness/condition is directly related to your active military service, and it assigns each disability a rating. The ratings are established by VA regional offices around the country;
The VA may provide nursing home care to other veterans if space permits. Veterans with service-connected disabilities receive priority.
LONG-TERM CARE INSURANCE
The popularity of long-term care insurance is growing, for obvious reasons. The problem with this payment option, however, is that many people don’t consider purchasing long-term care insurance until they need it. When they need it, they simply will not qualify for it. If you have not had a diagnosis that would affect your ability to obtain long-term care insurance, look into it today. Even if you pay more for it based on your age, the statistics show that your investment will be well worth it down the road. In addition, there are tax incentives available for purchasing long-term care insurance, and certain qualifying policies can make your home a non-countable asset for Medicaid/MassHealth purposes. Call my office if you would like a referral to a trusted insurance professional.
This is the most non-desirable payment option for extended nursing home payment, but most folks do not do adequate pre-planning. Let me be clear. Facilities provide care, and facilities need to be paid for their services. Pre-planning is critical, however, to ensure that you take advantage of laws that allow you to protect your spouse and protect your own quality of care for the future. Private payment can average from $10,000-$12,000 per month – could you afford to pay this expense for an extended period of time without putting your spouse or your security at risk? Have you taken the necessary steps to ensure that your security will not be left to chance?
Medicaid is the federal program that is known as MassHealth inMassachusetts. When you run out of funds to pay for your nursing home care, you can apply for MassHealth coverage. An individual may only have $2,000 in assets, and a married couple may have a combined $111,560. There are some assets that are “non-countable” in that limit, such as the marital home, life insurance with a face value of $1,500 or less, a car, life insurance that you can not access or surrender (such as a group or term policy). There are a myriad of regulations that apply to specific situations, and penalties imposed if you give your funds away within the five years prior to applying for MassHealth. It is imperative to do advance planning to ensure that you apply the regulations to your particular situation in a manner that will maximize your future security without jeopardizing your eligibility for this important benefit.
This summary is far from comprehensive, but I hope it causes you to reflect on your own situation. If you would like more information on long-term care payment options or to schedule a Legal Check Up, contact us today.
It was not until two years later, after her mom had passed away, that the nursing home threatened to sue Marylou for an unpaid balance for her mother’s care. Marylou discovered that one of the documents she signed was an agreement to guarantee payment for her mother’s care. Marylou’s mom was on MassHealth for most of her stay, and her income was paid to the nursing home each month. If Marylou had not provided a personal guarantee for payment, she would not be facing a lawsuit.
Just recently I met with Tom, whose mother suffered significant injuries from an accident in a nursing home. Tom was inquiring about a potential lawsuit against the facility, but a review of the Admissions Agreement that Tom signed on his mother’s behalf revealed that he waived that right before she even moved into the facility. One of the provisions in the contract was an agreement to submit any dispute to arbitration rather than to a court of law.
Nursing homes are specifically prohibited from requiring residents to agree to arbitration or requiring a third party to guarantee payment for a resident’s care, but they can seek such guarantees on a “voluntary” basis. The problem is that people usually do not realize the significance of what they are “voluntarily” signing.
Had Marylou or Tom consulted an attorney before they signed the Admissions Agreement, they would have known their rights and ensured that any objectionable provisions were removed from the Agreements.
The message here is not that nursing homes are bad. In fact, most facilities train their staffs to properly disclose prospective residents’ rights. You must advocate for your own rights, however, and in order to do that you must first understand that you need independent review and representation in the nursing home admission process.
Nursing home residents are protected under federal and state laws. The Nursing Home Reform Law (known as OBRA ’87) promoted individualized care and protection for residents of any nursing home that participates in Medicare or Medicaid, regardless of their source of payment. Massachusetts nursing home residents are further protected by the consumer protection statutes enacted by the Attorney General (AG). The AG regulations provide that any violation of OBRA ’87 and similar laws intended to protect nursing home residents is a violation of the consumer protection statute, and the resident may be able to collect attorney’s fees and costs in addition to multiple damages.
Here are some of the protections these laws provide:
*Potential residents may not be forced to waive important rights or agree to unfair terms (such as an agreement to provide a third-party guarantee for payment or to submit any dispute to arbitration). The reality, however, is that folks are overwhelmed and want the available bed for their loved one, so they sign whatever they are asked to.
* Nursing homes are prohibited from discriminating against potential residents based on source of payment. They can ensure that they will get paid, but they can not discriminate against someone who will need to apply for Medicaid (MassHealth). The reality is that some nursing homes do give preference to potential residents who have the ability to pay privately. Some facilities will even request a guarantee from the resident or the resident’s family that they will privately pay for a certain period of time – say six months.
* Discharge of a resident for behavior or mental health problems is quite common and it is accomplished by a practice known as “dumping” where the facility sends the resident out for a psychiatric “evaluation,” and then refuses to readmit the resident. In reality, families do not know that the refusal to readmit is a violation of the law and triggers their rights to an appeal.
* A proposed transfer from one room to a non-Medicare certified bed requires 30 days written notice and the resident has the right to appeal and refuse the transfer. In reality, when Medicare coverage ends nursing homes frequently claim that certain beds are non-Medicaid rooms and for private pay only. In some cases, no written notice is issued and the family does not know that one should have been issued, much less that there is a right to appeal.
* For rehabilitation therapies, Medicare reimbursement rules do not require “progress.” The resident must need “skilled nursing services” or “skilled rehabilitation services” and even if the resident is not making progress, the facility has the obligation to provide services to “maintain” the resident’s condition and ensure that the resident’s ability to perform Activities of Daily Living does not diminish.
The reality is that residents are frequently terminated from this benefit because they are not making progress, and the families do not know that they have the right to appeal.
These are just a few of the common issues. If you are faced with the need to place a loved one in a nursing home, be sure to have the contracts reviewed by an Elder Law Attorney before you sign to ensure that you and your loved one are properly protected.