Archive for Elder law
MAY IS ELDER LAW MONTH!!
May has been declared to be National Elder Law Month and Older Americans Month. We think that makes this the perfect time to discuss how we and other elder law attorneys can serve “older Americans” (defined as those who are at least 60 years of age).
What is Elder Law?
Elder law addresses the needs of the elderly, the disabled, and their families. This includes planning for future age- and disability-related issues, such as how to safely remain in the home or placement in a long-term care facility. Specifically, elder law attorneys help clients secure peace of mind through estate planning, disability planning, and planning involving government programs such as Medicaid and Veteran’s Administration benefits. We also handle situations where it either has become too late for planning (due to a disability or death), as is common in guardianship and probate cases, or when a plan is being challenged.
More than Documents and Litigation
Because of the many different government programs and legal options that may be available to clients, elder law attorneys take a comprehensive approach to planning. Every client will have a different situation, usually with multiple issues to be addressed and more than one set of laws and rules to consult.
As a result, elder law attorneys spend a significant amount of time with older individuals and discuss extremely personal preferences and fears. This creates an opportunity for us to be a resource to our clients. By getting to know other people in our community who provide services to older Americans, such as independent and assisted living facilities, home health care providers, hospice care providers, and even other attorneys, we can give our clients practical as well as legal guidance and counsel them every step of the way.
LAWYER’S BEHAVIOR AT TRIAL IS NOT EVIDENCE OF ELDER ABUSE
Here is an interesting case from California that caught our attention. An 83 year old man filed for a protective order against his 56 year old daughter because of alleged abusive treatment. In the court hearing over the matter, the daughter’s attorney’s confrontational cross-examinationof the elderly gentleman was found by the trial court to be consistent with the daughter’s desire to treat her father in such a fashion. He then granted a protective order which stated that the daughter could not contact, molest, attack, strike, threaten, assault or otherwise disturb the peace of her father. The daughter appealed the case arguing that her attorney’s behavior and her lack of response to it should not be used as evidence by the trial court. The appellate court agreed and said that the trial judge was wrong to base his decision on the lawyer’s conduct.
While this decision is good news for us lawyers, it does highlight the fact that we are too often aggressive and confrontational, particularly in guardianship, probate, and other elder law cases. It is important that all lawyers recognize when in the probate court that we are not trying high profile criminal or personal injury matters. We are involved in disputes among family members where emotions are already running high and we should avoid making matters worse. We can represent our clients effectively in elder law matters without being either abusive or confrontational.
WHY THE ELDERLY – AND THEIR LOVED ONES – SHOULD CARE ABOUT SEQUESTRATION
You have probably heard about sequestration, the latest in the fiscal cliff saga that started late last year. Although the term sounds complex, “sequestration” simply refers to automatic government spending cuts that are set to go into effect today, March 1, 2013. These cuts will take $1.2 trillion out of the federal budget over the next 10 years.
The spending cuts will be spread across government agencies and will affect the budgets of various programs, including one that is vital to the elderly across the country: Meals on Wheels. Meals on Wheels provides over one million hot meals every day to seniors in need. They even deliver meals to the homes of those who have limited mobility. Unfortunately, spending cuts will reduce the number of meals that can be delivered and hinder the program’s mission of ending senior hunger.
Meals on Wheels is as important in our area as anywhere else; Florida is in the top 10 states for senior hunger risk. There are several agencies in Northeast Florida that participate in Meals on Wheels and together deliver hundreds of thousands of meals each year.
Sequestration was set to occur at the end of 2012, but was pushed back to March 1 as part of Congress’ year-end fiscal cliff deal. Even if Congress “punts” again, and defers the spending cuts to later this year at the last minute, the elderly and their loved ones should be aware that these cuts likely will affect them eventually. For more information, including how you can help, see: http://www.mowaa.org/.
Please feel free to post comments on our Facebook or Twitter or to make an appointment if you have individual questions or concerns.
Cramer Law Center offers full, flat fee estate planning services including wills, trusts, durable powers of attorney, health care surrogate designations, living wills, designations of preneed guardian, and more.
The next “Truth About Estate Planning” workshop will be held at the Cramer Law Center located at 4217 Baymeadows Rd., Suite 1, Jacksonville, Florida 32217 on March 5, 2013 at 10:45 a.m. Please call us at (904) 448-9978 to reserve your seat.
CONTESTED GUARDIANSHIP: NOT EVEN THE RICH AND FAMOUS ARE SAFE
While even the simplest guardianship is an expensive, lengthy, and public undertaking, a contested guardianship can be much worse. A contested guardianship is a case in which there are multiple interested persons (usually family members) with different ideas of what is best for the incapacitated person (the “ward”). As you might imagine, contests like this can drive up the financial and emotional cost of the proceeding, delay results, and air a family’s “dirty laundry” in open court.
A recent celebrity example of a contested guardianship is Fredric von Anhalt’s guardianship (called a “conservatorship” in California) over his wife Zsa Zsa Gabor. Gabor’s daughter asked the court to appoint her as her mother’s guardian instead, accusing her stepfather of sedating and isolating her mother and mishandling her finances. All of this and more has been discussed in court, and is memorialized in the public records and gossip columns. Von Anhalt, who appears to have generally taken good care of his wife, has had to justify all his actions and pay for his defense.
As in the Gabor case, the point most often in dispute in a contested guardianship is who is best suited to take care of the ward as his or her guardian. This issue is usually resolved by the court at the time it determines that the ward needs a guardian. However, a serious debate between family members over who should serve as guardian can extend a hearing that should take fifteen minutes into a trial that spans over several days. Additionally, challenges can continue throughout the guardianship, like they have in the Gabor case.
The good news is that everyone, rich and famous or otherwise, can avoid guardianship altogether with proper planning. A comprehensive estate plan may include documents such as a revocable living trust, a designation of health care surrogate, and a power of attorney that can serve as an alternative to guardianship, when well-drafted. The plan also may include a designation of pre-need guardian, which allows you to name the loved one(s) you would want to be your guardian, if a court should ever decide you need one.
2012 LONG-TERM CARE BY THE NUMBERS
Long-term care has been on our minds this month at Cramer Law Center because November is National Long-Term Care Awareness Month. To further your awareness, here are the latest long-term care statistics for this year:
- Annual Rate for Private Nursing Home Room….$90,520
- Annual Rate for Semi-Private Nursing Home Room….$81,030
- Annual Base Rate for Assisted Living….$42,600
- Annual Rate for Private Nursing Home Room….$94,535
- Annual Rate for Semi-Private Nursing Home Room….$83,950
- Annual Base Rate for Assisted Living….$38,808
*Jacksonville, Florida Average:
- Annual Rate for Private Nursing Home Room….$81,395
- Annual Rate for Semi-Private Nursing Home Room….$75,190
- Annual Base Rate for Assisted Living….$39,192
These numbers are staggering as-is, but it gets worse. Some nursing homes and many assisted living facilities have an additional charge for patients needing memory care for Alzheimer’s or dementia. And although assisted living facility base rates look appealing next to nursing home rates, they don’t include services such as personal care and medication management, each of which can cost hundreds of dollars per month.
Have you planned for long-term care? There is no time like the present to contact your financial advisor and inquire about how best to prepare your finances to meet these potential expenses. You should also meet with an attorney to discuss the legal planning that will best protect you and your loved ones in the event such long-term care becomes necessary.
Click to view the full survey, including data for all 50 states and many major metropolitan areas: https://www.metlife.com/assets/cao/mmi/publications/studies/2012/studies/mmi-2012-market-survey-long-term-care-costs.pdf
THE VALUE OF CONSISTENT PLANNING
With the Walk to End Alzheimer’s coming up this weekend and National Long-Term Care Awareness Month starting today, elder law is on our minds. So, this is the perfect time to share an elder law story that illustrates the value, and importance, of consistent planning.
Our client, “Diana”, thought that her father, “Fred”, had taken care of his disability planning by executing a power of attorney, naming Diana as his agent, several years ago. However, when Diana’s mother, “Mary”, died, Mary’s former caregiver took control of Fred and his affairs. The caregiver introduced Fred to an attorney who revoked the power of attorney to Diana and drafted a new power of attorney, as well as other documents, in favor of the caregiver.
Diana was forced to spend a significant amount of money to go to guardianship court to fight for the right to help her father take care of himself. The caregiver has isolated Fred from his family and tells him awful lies about his daughter. She may even have influenced Fred to change his estate plan. This is a dire scenario, but unfortunately not an uncommon one.
We include comprehensive disability planning documents in our estate planning packages as a matter of course. More importantly, we have our clients re-execute all of their documents every two years so that we build a record of consistency. If Fred had given a power of attorney to Diana in 2006, 2008, and 2010, his intent would be clear and the court likely would have thrown out the new power of attorney early on, allowing Diana to protect Fred and his assets from the predatory caregiver.
DIVORCE AND BENEFICIARY-DESIGNATED ASSETS: PART TWO
This is the second part of a newsletter addressing a recent change in Florida law regarding divorce and beneficiary-designated assets such as life insurance, retirement plans, pay-on-death accounts and annuities. As of July 1, 2012, a new Florida statute
avoids the distribution of this type of asset to an ex-spouse beneficiary by pretending that the ex-spouse died before the owner. Part One of this newsletter explained when this new law starts protecting assets and who receives the assets instead of the
ex-spouse. This part provides some additional considerations for those who might be affected by the new statute.
A significant fact about the new divorce law is that it does not protect all beneficiary-designated assets. The statute specifically applies to life insurance policies, annuities, employee benefit plans, IRAs, and pay-on-death accounts. However, it will not affect either joint accounts with rights of survivorship or any policy or contract that is not governed by Florida law. Additionally, the new law will not write the ex-spouse out as beneficiary if a court order required the owner to maintain the asset for the benefit of the ex-spouse or children of the marriage, or if the beneficiary designation was irrevocable under the terms of the divorce or otherwise. Thus, relying on this law to “automatically” protect you could prove dangerous.
This is highlighted by the fact that, even when the new statute does apply, it will be difficult to enforce. The law gives substantial protection to the institutions that will be responsible for paying out the beneficiary-designated assets (the “payors”). Specifically, a payor is not liable for distributing an asset to the ex-spouse where the beneficiary designation does not specify the relationship between the ex-spouse and the owner or if it states that the ex-spouse is not married to the owner. A payor is also entitled to rely on the marital status and spouse of the owner stated on a death certificate, even though that information is not verified by the funeral homes that usually submit it. Shockingly, this immunity applies even when the payor knows that the person the asset is transferred to is different than the person who should own it according to the new divorce law. This means that once the benefits are paid out, it becomes much more difficult to redirect them to the correct beneficiary.
Again, we recommend that you re-evaluate your estate and financial planning as soon as you decide to get a divorce or annulment. Your estate planning attorney, insurance agent, and financial advisor should be able to help you take action so that the law will work for you rather than against you.
PLANNING FOR SPECIAL ITEMS IS ESSENTIAL PART TWO – COLLECTIBLES
Last week, we wrote about a unique automobile that sparked a legal battle and ultimately fell into the wrong hands due to a lack of planning. We encouraged everyone who owns any kind of special item to plan now to avoid expense and stress later. This is especially true for collectible items, such as art, coins, stamps, antiques, etc.
Early planning for collections is crucial due to tax and valuation issues. When a collector passes away, the IRS wants to know how much his estate is worth, including collectibles. Although it can be difficult to determine the value of a collection, it is an important consideration for both lifetime and estate planning. If you have a good idea of what the IRS thinks your collectibles are worth, your estate planning attorney will be better able to advise you on estate and gift tax considerations. Depending on your situation, you may need to consider gifting or selling your collection during your lifetime.
Of course, many collectibles hold sentimental value for their owners, making tax and market value concerns secondary to the desire to keep the collection in the family or intact. When this is the case, timely planning is again the best solution. As a first step, we recommend evaluating your family’s appreciation of your collection and their willingness to maintain it. As with all other aspects of planning, knowing your family and sharing that knowledge with your lawyer will help you get the best plan possible.
BEWARE OF SCAMS TARGETING THE ELDERLY
As estate planning and elder law attorneys, one of our primary goals is to educate our clients and community about how they can protect themselves and their assets. This newsletter will share and expand upon a recent article about con artists who target senior citizens. The Associated Press reports that “elder financial abuse” has become an “industry” that brings in billions of dollars each year. This form of elder abuse includes fraud perpetrated by relatives and acquaintances as well as scams run by complete strangers. The outsider-run cons can be particularly devastating, both financially and emotionally, because they are so effectively targeted at older individuals and very difficult to trace back to their often international origins.
One common scam involves a con artist calling a targeted person and claiming to be his or her grandchild. The impostor then says that (s)he is facing some sort of crisis, often abroad, and needs the potential victim to wire money immediately, and without telling anyone else in the family. Another way that scammers prey on senior citizens is with correspondence claiming that the potential victim has won a lottery, usually in another country, but must send money to cover fees and taxes in order to receive the prize money.
We have met real victims of the two scams described above. One woman actually had a grandchild living outside the United States and so wired a few thousand dollars to a foreign country. Another victim received calls and letters that she had won the lottery in a country she had never visited, as well as correspondence from a psychic stating that she would soon be wealthy, and was conned into sending several thousand dollars to claim the fake prize.
Please be aware that these scams are out there and that con artists are getting better at targeting their victims all the time. If you would like more information on protecting yourself or your loved ones from becoming a victim, we are here to help. For the full Associated Press article, click here:
Medicare/Medicaid Planning: Why to consult an attorney before your parent is placed in a nursing home
We recently have been helping a family try to untangle a mess created by the lack of planning. The matriarch of the family (“Mom”) became ill and was hospitalized. Her condition was very serious, so the decision was made to place her in hospice care after the hospitalization. However, she recovered and then was transferred to a nursing home. During this trying process, her children were besieged with requests, such as “you must complete this Medicaid application immediately”, “sign this”, “sign here”…Finally, it all became overwhelming and they sought my advice.
As we often say, what you don’t know can hurt you. When Mom was placed in the nursing home, the family learned that Medicare would not pay any of the bill. This is because Medicare pays nursing home bills only under very limited circumstances. In order for payments to be made to a nursing home, Medicare rules require that the patient be admitted directly from a hospital stay of three (3) days or more and be undergoing some type of rehabilitation designed to improve the patient’s condition. If this criteria is met, then Medicare pays one hundred percent (100%) of the first twenty (20) days stay in the nursing home, and eighty percent (80%) of the next eighty (80) days’ stay. This can provide a family with some cushion of time within which to make plans to apply for Medicaid assistance, if necessary.
In our situation, because the family was unaware of this rule, they agreed to place Mom in hospice care first rather than the nursing home. Had they been aware of the rule, they would have been able to request that Mom be placed directly into the nursing home and that hospice perform its services there. Not knowing this fact, and without having consulted an attorney previously for advice, the family was required to pay several thousand dollars in expenses that it otherwise could have avoided.
The next mistake our clients made was succumbing to the pressures from the nursing home to “hurry up and complete your Medicaid application”. The family applied for Medicaid when Mom was ineligible to receive this assistance. Although Medicare is an entitlement to persons over the age of sixty-five (65) who are enrolled, Medicaid is need-based assistance, which is available only to impoverished citizens who meet Medicaid eligibility criteria. This criteria includes having no more than $2,000 in non-exempt assets and a limited amount of monthly income. In our family’s situation, Mom’s assets were limited, but slightly over the eligibility limits when the application was completed. By applying to Medicaid too soon, the family was forced to pay $6,700.00 out of pocket for the first month’s nursing home stay while taking the necessary steps to comply with Medicaid regulations and revising their application to reflect those steps.
Had Mom or her family planned for this eventuality ahead of time, the attorneys’ fees spent on such planning would have been far less than the out of pocket costs actually incurred. Plus, the family would have had peace of mind knowing how to orchestrate an orderly transition into the nursing home and would have avoided the stress and upset of being rushed into making decisions which were not in their best interests.
Our goal as elder law attorneys is to help as many people as possible avoid the Mom situation. If you or anyone you know may be dealing with Medicare or Medicaid in the near future, we would be happy to assist you with your planning needs.