Trusts are legal structures often used by Elder Law attorneys. Their purpose is to preserve income or assets that you would otherwise be forced to spend on your care. Trusts can be an excellent way to protect your home and preserve your equity. They can shield you from being exposed to Medicaid liens when you no longer live there. They can also shield you from estate recovery.

What happens if you keep the home in your name

Consider you own a house, condominium or cooperative apartment worth $500,000 in today's market. You bought it 40 years ago for $35,000, and your mortgage is paid off. Now you need long-term home care. Your primary residence is an exempt asset for eligibility purposes, but that's not the end of the story. Medicaid may eventually require that some or all of the equity be used to reimburse the cost of your care.

Medicaid can seek to recover their costs in two ways. The first is by placing a lien against your property when you move out permanently. The second is by recovering from your estate via a lien when you die. In both cases, the lien will be equal to the costs that Medicaid incurred for the benefits provided on your behalf.

Long-term care is ruinously expensive. Costs can quickly rise to an amount that would exhaust your entire home equity, should a lien be enforced. Your home equity would be paid to the government to repay the cost of your care. Nothing would be left for your children, loved ones or other heirs.

Why Trusts are so useful

A trust can be used to prevent these unfortunate outcomes. By transferring your home to a trust, you are no longer the legal owner of the home. The home is therefore not subject to a Medicaid lien, or the claims of any other future creditors.

An eldercare attorney can structure a trust to achieve your goals. First, it can allow you to live in your home as long as you wish. A trust can also contain instructions to transfer ownership to your designated beneficiary after you pass.

Keep in mind, if you should require nursing home care within the ensuing five years, the home transfer will be subject to the look back period and could result in a period of Medicaid ineligibility. In this event, other strategies may be available to protect a substantial portion of your home equity.

(Note about the Author:  Ben Cutner, a rising junior at Davidson College, is interning with Lamson & Cutner this summer.  He is interested in the possibility of pursuing a legal career.  We asked him to write a brief article on a topic of interest to him.  His article should be of particular interest to parents who have children 18 years of age or older.)

Everyone should have a Health Care Proxy, including young adults.  A health emergency or major accident can happen to anyone, regardless of his or her age, and at any time.  The risk of a life-threatening car or biking accident, for example, is not less for young people.   Generally, young adults are more likely to engage in riskier activities than more mature adults.  

A Health Care Proxy assures that, were you to be seriously injured and unable to make your own medical decisions, your legally appointed health care agent would be able make them for you.  Otherwise, your parents or other family members would have limited authority, if any, to act on your behalf.  

Imagine you have a son or daughter away at college who is seriously injured and becomes incapacitated.  You might think that, as the parent, you can helicopter in and make all the medical and health care decisions on your child’s behalf.  After all, he or she is still a dependent, on the family insurance plan, and lives at home in the summer.  

If your son or daughter is 18 or older, however, he or she is legally an adult in New York and in almost every other state.  Unless legally appointed as the health care agent, a parent has no authority to make medical decisions on behalf of their adult child.  Please do not assume that health care professionals will allow you to decide as the parent.   Without a HIPPA waiver, they may even refuse to provide you with all of the information you would like to have about your child’s medical condition.

The New York State Department of Health guidance on the Health Care Proxy includes the following FAQ:

“Who will pay attention to my agent? 

All hospitals, nursing homes, doctors and other health care providers are legally required to provide your health care agent with the same information that would be provided to you and to honor the decisions by your agent as if they were made by you.”  (https://www.health.ny.gov/publications/1430.pdf)

Despite this guidance, Lamson & Cutner attorneys recommend that the best practice is for your Health Care Proxy to include a HIPAA waiver.  HIPAA, the Health Insurance Portability and Accountability Act, strictly controls who can see your health information.  Putting a HIPPA waiver in your Health Care Proxy will assure that your agent can access all of the information needed or desired to make an important health care decision on your behalf.

A Health Care Proxy is an advance directive—the type of document that is handled before it is needed.  We sincerely hope young adults will not need their Health Care Proxy any time soon, but accidents happen.  However unlikely one may be, please consider planning and preparing for a health emergency ahead of time.

If you need advice or help with your advance directives, you may want to consult with one of the experienced attorneys at Lamson & Cutner, P.C.

Lamson & Cutner, P.C. was approved by the NY State Department of Education to be an authorized provider of continuing education for Licensed Mental Health Counselors (LMHCs) in New York State.

With this authorization, Lamson & Cutner continues to expand the types of professionals who can benefit from learning about Elder Law and estate planning topics, while receiving Continuing Education credits in New York State.

Elder Law issues are highly relevant to seniors who seek advice and assistance from numerous types of professionals.  Now our firm can instruct Licensed Mental Health Counselors, in addition to Licensed Social Workers and Certified Case Managers, and they all can receive CE credits for the courses.

Our courses offer concrete, useful, and often crucial information that is relevant to the practices of LMHCs and others.  In the courses, we discuss the risks associated with long-term care, opportunities for people to protect themselves and/or their loved ones financially and legally, and estate planning issues.  We take care to explain everything clearly and understandably; feedback from past attendees has been excellent.  Taking our courses is an effective way for professionals who work with seniors and the disabled, to learn how to guide their clients who need this type of service.

We look forward to seeing new faces in our classes.

Lamson & Cutner is authorized to give Continuing Education credits to Certified Case Managers.

Lamson & Cutner has received authorization from the Commission for Case Manager Certification to grant Continuing Education credits to Certified Case Managers.  Case management is a collaborative process that assesses, plans, implements, coordinates, monitors, and evaluates the options and services required to meet a client's health and human service needs.  Social workers often have Certified Case Manager certification; some nurses do as well.

Certified Case Management certification is rigorous.  To retain the valued CCM® credential, board-certified case managers must earn 80 hours in continuing education every five years, or re-take the challenging CCM exam.

Now CCMs can obtain CE credits by taking Lamson & Cutner’s course on “Medicare and Medicaid.”  The firm is currently applying for authorization for its other three courses.  They are particularly useful for social workers and other professionals who work with seniors or disabled people with long-term care needs.

SIGN UP TODAY!

 

Your spouse has passed away, and now you’re on your own.  The funeral or memorial service is over, and it’s time to look forward.  You know you need to get a handle on your financial picture and plan for the future.  But where should you start?  It’s depressing, daunting, and nerve-wracking even to think about.  But you can do it!

Take a deep breath, and let it out. There are many excellent professionals out there who can help you every step of the way.  I’ll give a brief overview of the most important steps in getting started, but finding someone you trust to help get you (and keep you) on the path to stability and success will help enormously.

1. Your first step is to figure out what you have. Make a list of all your assets.  This includes bank and brokerage accounts, retirement accounts, the equity in your house, the cash value of life insurance, and other items that can be converted into cash.  Ignore things like jewelry and cars unless you have a 10-carat diamond or a Ferrari you don’t need.  Don’t get too hung up on exact value or details of the different accounts if it will prevent you from moving forward.

 

2. If you have over $100,000 in assets not including the equity in your home, you may benefit from a consultation or a relationship with a financial advisor. Our firm can recommend several, but you can, of course, look for one yourself.  Your best bet is a fee-only financial advisor.  Fee-only advisors are paid a percentage of the assets they manage.  The percentage differs, but the 1% range is not unusual.

The reason we like fee-only advisors is that they have the same goals you do – to keep your money safe and make it grow.  If your assets rise in value, they make more – and if your assets lose value, they make less.  If you don’t know where to look for one, but want to find one yourself, you can ask friends or your accountant (if you have one) for a recommendation.

3. This is also the time to review your estate plan. We highly recommend you speak to an estate planning attorney who is also an Elder Law attorney, and here’s why.  Health care is extremely expensive as you age and can wipe out your life’s savings quickly and completely.  You don’t want to have a great estate plan, but end up with no estate.

An Elder Law attorney can help you structure your estate plan so that it will achieve your goals when you pass away, but also so that it will protect your assets while you are alive.   The U.S. Department of Health website states that 70% of all Americans will need long-term care at some point, and 40% will need nursing home care.  Protecting against this enormous risk can be vital to your long-term comfort and peace of mind.

Finding a professional who works to educate you, who has in-depth experience in the field, and who really cares about you, will give you the best opportunity to put in place a financial plan and an estate plan that reflect and incorporate your personal goals.

When individuals are admitted to a hospital, they can be designated as “inpatient” or under “observation status.”  Many patients are unaware of these designations, which can have far-reaching consequences for billing and for subsequent treatment.  These consequences are of particular concern to seniors who are covered by Medicare.

Medicare Part A pays for hospital inpatient services, but does not pay for patients under observation status.  Only Medicare Part B will pay for observation status.  Since most people have Part A and Part B (as well as supplemental or Medigap insurance), this may not appear to be a serious matter to them.

However, unless the patient was admitted to the hospital as an “inpatient” for at least 3 days, Medicare will not pay for subsequent rehabilitation services, and supplemental insurance will not pay either.  Many patients are discharged from the hospital to a skilled nursing facility for rehabilitation, which can last for several weeks.  These services are extremely expensive, and, if not covered by insurance, will be financially devastating for most people.  For a detailed explanation, see the government’s Medicare website regarding this subject.

For those patients who have Medicare Part A only, the financial consequences of “observation status” are even more devastating.  They will be required to pay out of pocket for both the hospital stay and for subsequent rehabilitation.  The costs could easily run into tens of thousands of dollars.

Thus, for every senior whose primary medical insurance is Medicare, it is vitally important to know whether your hospital stay is “inpatient” or “observation status.”  Medicare will not include time spent in hospital in “observation status” or in the emergency room, when determining whether you have met the 3-day hospital stay requirement for subsequent rehabilitation in a skilled nursing facility.   It is particularly concerning that, in some cases, patients admitted to the hospital by their own doctors have seen their inpatient status retroactively reversed by the hospital to outpatient observation status.

Starting March 8, 2017, the Centers for Medicare & Medicaid Services (CMS) announced that hospitals must give patients a standardized “Medicare Outpatient Observation Notice” (MOON).  However, the MOON does not provide any right to appeal, and patients cannot challenge their observation status.  This problem is currently being addressed by the Center for Medicare Advocacy.

A sensible question to ask is:  Why are hospitals admitting some patients under observation status rather than as inpatients?  The answer may be found at least partly in the financial penalties Medicare imposes on hospitals if more than a certain percentage of patients are readmitted within 30 days.  In a 2016 article entitled “The Hidden Financial Incentives Behind Your Shorter Hospital Stay,” the New York Times stated that “Under Medicare’s Hospital Readmissions Reduction Program, hospitals now lose up to 3 percent of their total Medicare payments for high rates of patients readmitted within 30 days of discharge.  This fiscal year — the fourth one of the program — Medicare will collect $420 million from 2,592 hospitals that had readmission rates higher than deemed appropriate. . . .  [There is] evidence that hospitals are gaming the metric.  For instance, patients who are placed under ‘observation status’ are not counted in the readmissions metric even though they may receive the same care as patients formally admitted to the hospital.  Likewise, patients treated in the emergency room and not admitted to the hospital do not affect the readmissions metric either.”

It is unfortunate when well-intended ideas get turned into perverse incentives.  Of course it would be good to reduce short-term hospital readmissions.  However, it makes little sense to allow hospitals to game the system and pass on financial penalties to seniors, who tend to have chronic, recurring and deteriorating conditions.  In many cases, the difference between “inpatient” and “observation status” may be nothing more than an arbitrary designation aimed at avoiding a potential financial penalty for the hospital.

When admitted to a hospital, seniors and their families need to be alert to whether their admission is “inpatient” or outpatient “observation status.”  Ask your doctor to help make sure your hospital admission is “inpatient.”

At Lamson & Cutner, P.C., we provide advice and assistance regarding health care and long-term care.   We don’t want our clients to be caught off guard and faced with exorbitant hospital and nursing home bills.  Our Elder Law attorneys work with seniors and their families to gain access to Medicaid benefits for home care and skilled nursing care.  We can advise on attaining eligibility for benefits, and how to protect your assets and income at the same time.  We are experienced with Medicaid asset protection trusts, pooled income trusts, and all the most effective strategies of Elder Law practice. Contact the Elder Care Attorneys at Lamson & Cutner, P. C., for further details.

Coming to the realization that you or a loved one may need to enter an Assisted Living facility or community can be difficult. For starters, it’s not an easy decision for anyone involved. Moving out of the home into a facility can be a touchy topic of conversation. However, in some cases safety and quality of life can improve greatly after making the transition.

What’s also important to realize is that you’re not alone. More than 735,000 Americans today live in Assisted Living facilities, according to the American Health Care Association. Assisted Living is a rapidly growing option for seniors who need long-term care. Here are three reasons to consider that same option for yourself or for your aging family member.

Avoiding Isolation, Loneliness, and Depression

As people grow older, they frequently find it more difficult to get around for everyday needs, or to visit friends and family as they once did. Driving may no longer be an option, and people can spend a lot of time alone in their homes or isolated with a spouse who is also having trouble with everyday activities. The resulting loneliness can result in exacerbated mental and physical health issues. A 2013 study in the Proceedings of the National Academy of Sciences found that older people separated from family and friends had a 26 percent higher death risk.

Moving to an Assisted Living community means you or your loved one will be surrounded by other people in similar situations; people eager to engage in conversation. Additionally, communities typically organize activities and clubs for residents to help encourage socialization.

Can’t Maintain a Home or Keep up with Finances

Daily chores such as cooking, laundry, cleaning, grocery shopping, and paying the bills can become too cumbersome as a person gets older. If these tasks are getting neglected, an Assisted Living community is a potential solution. For example, the National Center for Assisted Living notes that 87 percent of people living in Assisted Living need help preparing meals.

Assistance with these types of activities is typically available on a fee for service basis or is bundled with the living arrangement.

Help May Be Necessary for Everyday Activities

Most seniors in Assisted Living are self-directing, and many are still able to function independently. For them, Assisted Living offers security, daily meals, housekeeping, and social programs. They have their own apartments within the facility, and retain a strong sense of independence.

Others in Assisted Living need assistance with Activities of Daily Living (commonly referred to as the “ADL’s”). These seniors cannot independently eat, bathe, move around the house, get dressed, or take care of other personal needs. Assisted Living communities usually can provide 24-hour supervision and staff to assist with the ADL’s. However, Assisted Living is not for residents who have serious medical conditions, and who require skilled nursing care.

AARP offers a checklist of how to find a reputable Assisted Living facility in your state, as they are not regulated or inspected by the federal government.

How to Pay for Assisted Living

In New York, if you need assistance with Activities of Daily Living such as dressing, bathing, or getting in and out of bed, and are in an Assisted Living facility, you may be able to access Community Medicaid to pay for it. New York Community Medicaid does not have the five year “look back” that so many people fear: the look back applies only to nursing home Medicaid. Moving to an assisted living facility can help you to remain independent longer, and you don’t have to “spend down” all your money. Obtaining Medicaid assistance quickly to pay for your care will protect your savings and allow them to last as long as possible.

In Conclusion…

This article provides only a few of the reasons why Assisted Living may be a great choice for you or someone you know. If you have specific questions about Assisted Living and how it may impact you or a loved one legally and financially, click Find Your Situation in our header, call Lamson & Cutner or click here to get in touch today.

The declining ability to verbally communicate with others is a common trait of those dealing with Alzheimer's disease. While this can be heartbreaking and frustrating for a loved one, communication will become important in every interaction. Communicating with a person with Alzheimer's requires good listening skills, persistence, and calmness. Never stop communicating with an Alzheimer’s patient.

Changes in the ability to communicate are unique to each person with Alzheimer's disease.

Your loved one may experience a slow disintegration of verbal (or even nonverbal) communication skills due to Alzheimer’s disease. Their words or speech may not make sense to you. In turn, he or she might have trouble understanding what you are saying to them. In the early stages of the disease, the person's communication may not seem very different at all. It is very common that he or she might repeat stories or not be able to find the right word. Challenges and difficulties will be different from person to person. As the disease progresses over time, you may recognize other changes such as:

• Using familiar words repeatedly;
• Inventing new words to describe familiar objects;
• Losing his or her train of thought;
• Reverting back to a native language;
• Having difficulty organizing words logically;
• Speaking less often

Even though a person that is in the later stages Alzheimer's may not always have a response, he or she still needs and gains from both verbal and nonverbal communication with others. When communicating with a person with Alzheimer’s disease, it's especially important to choose your words carefully. The most important idea is to never stop communicating. The following tips will help when speaking and interacting with a person with Alzheimer’s:

• Say who you are. Approach the person from the front and identify who you are. If the person is seated or in a lower position, go down to their eye level.
• Use their name. It helps acclimate the person and also grabs their attention.
• Use concise words and/or phrases. Lengthy stories or statements can be too much for the patient to understand. Ask one question at a time.
• Speak slowly and distinctly. Be aware of how fast and how clear you are talking. Use a calm and relaxed voice with a soothing lower pitch.
• Maintain eye contact. It is also important to make and maintain eye contact when talking with anyone who has Alzheimer’s disease. It shows that you are paying attention and makes it easier for him to understand what you are saying, or at least what you are meaning.
• Wait patiently. The person may need extra time to process what you said. It’s important to have a patient demeanor while waiting for them to respond.
• Repeat statements or questions as needed. If the person you are communicating with doesn't have a response, wait for several seconds before asking again.
• Make visual or nonverbal gestures. To help demonstrate what you might be asking, point or touch the item you want the individual to use or process.
• Write items down. Try using written Post-It notes as reminders if the person is able to read and comprehend them.
• Treat the person with dignity and respect. This should be common sense, but it’s easy to get frustrated with a loved one when you think they don’t understand you. Avoid disrespecting the person or speaking as if they aren’t there. Be aware of your attitude that you may be communicating through your tone of voice. Use uplifting and friendly facial expressions as well as nonverbal communication.

If you or a loved one are dealing with the effects of Alzheimer’s and need a trusted advisor for elderly law, trust Lamson & Cutner, P.C. to help guide the transition.