Monthly Archives: February 2014

Is an Elder Care Attorney the same as an Elder Law Attorney?

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What is an Elder Care Attorney? What is an Elder Law Attorney? Are they the same? The terms pretty much mean the same thing, that is a lawyer, or attorney who works with elders.  But they can be different.

What does Elder Care mean? This term commonly refers to the various professionals who may assist an elder in the aging process. These professionals may be doctors, social workers, nurses, accountants, financial planners, real estate agents and attorneys and other professionals who may work with elders. An elder care attorney may not be an elder law attorney.

So, what is an “Elder Law Attorney”? This is the term the legal profession uses. Elder law refers to the are of law the lawyer practices. For example you might have a bankruptcy law attorney, or a divorce law attorney or criminal law attorney. Elder law focuses on government benefits, planning for the eventuality of incapacity and providing legal solutions for problems arising out of incapacity. An attorney who practices elder law may also practice in other areas as well.

There are 4 fundamental requirements for a good elder law attorney

FIRST the attorney must understand how the aging process may pit parent against child in what seems to be a battle of who will control the elder’s life. The attorney must help both to work harmoniously to the same goal of Safe Independence for the elder.

Second, the attorney must understand how various legal documents must be drafted to ensure the elder’s goals are met.

Third, the attorney must have a profound understanding of the primary government programs that will assist an elder during incapacity, and here I refer to:

the ever changing provisions of Medicare;
the Veterans benefit for wartime veterans, commonly known as Improved Pension with Aid and Attendance;
And the Medicaid benefit for long term nursing home care.

The eligibility requirements of these programs can simply wreak havoc on the life plans of elders and the Elder Law attorney’s job is to coordinate the elder’s values, goals and resources to come up with a solution that leaves the elder much better off than before.  For example, if an elder has a child who lives nearby, the elder may be able to “employ” the child for services and have the government program recognize the employment as a legitimate expense.

Fourth, the attorney must make you feel comfortable that he understands your problem and will work with you to find your solution.

In short the Elder Law attorney, must not only know the law that applies to aging, but understand the aging process and how it affects elders and their families.

I’ll cover in another post the subject of how to choose an elder law attorney.  Till the next time,

Jim

How can I afford long term care insurance?

I had an interesting conversation with a long term care insurance representative the other day.  I cannot reveal her name and you will see why.  She has been known in our area for years as one of the premier agents for this insurance.

She does not sell it anymore.

She said that the bank breaking (my term) premium increases made it simply unaffordable.  Some of her clients saw increases of 80 to 90%!  They thought they had arranged their future free of the worry of the cost of long term care, but now could not even afford the insurance. She felt she had mislead them and betrayed their trust. Her fix, and wise advice for anybody who has an LTCi policy, is to reconfigure the policy so that the client can still keep the money they had put into it. There are a number of variables in any policy that can be reduced. They might be the daily rate, elimination period and so on.  Sure a person may have 80 to 90% less coverage but they will preserve the money they have in the policies.

Is there a way they can cover the now bared exposure?  The short answer is “Yes.”   We can cover the nursing home portion of the LTCi policy and that way leave the policy free to cover in-home and assisted living care.  We do so by using a Medicaid based irrevocable trust.

The Medicaid irrevocable trust takes advantage of Medicaid’s five year look back.  You put as much as you want of your life-savings in this trust and after five years it is not considered as an asset by Medicaid.  Yet you can get all the income from your investments just like you do now. It’s almost like having your cake and eat it too.  There is one more bit of good news here: the cost of the trust is less than just one year LTCi premium! That’s not an annual charge, that is one time only. (!)  The note of caution to add is that the money you put in the trust should be that you do not expect to use.

Give me a call to learn more at 248-356-3500.  Ask for Jim.  Hmmm, I think you knew that didn’t you?  Oh well, talk to you later,

Jim

Can a child be paid for taking care of an aging parent?

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(Caution: this is a complicated are of law filled with rules and exceptions. If this is your situation see an elder law attorney about a caregiver contract.)

Can a child be paid for helping an aging parent?  General Michigan law and the Michigan Medicaid program presume that a child renders all services to a parent for free.  That means the services are of NO legal value, unless there is a contract between the parent and child to pay for the service.

Example: Mom has died and Dad cannot live at home anymore due to dementia, it might be Alzheimer’s.  The family finds that senior living communities will only take him on an “assisted living” basis.  The cost is  in the neighborhood of $4,000 per month. So what if the oldest daughter offers to have dad move into her home?  It often happens that a child takes care of a parent for some years before the parent must go to a nursing home.  Suppose she takes good care of him for years.  But then he fell and broke his He has a fall and breaks his hip.  He is discharged to a nursing home.  He cannot return to daughter’s home.  She got to the point where she can no longer take care of him 24 hours a day. They are distressed to see that she took so much better care of him than they do in the nursing home. After the Medicare skilled days are over they are shocked to learn the nursing home will charge $8,000 per month.   Dad will rapidly run out of money.  The family asks: “Can Dad now pay daughter for those years of excellent care?”

The surprising answer is “No.”

Unless Dad agreed to pay for daughter’s service under a contract  the law will presume all service was rendered for free.  If the family now tries to take payment out of his savings they could be charged with elder abuse and when they apply to Medicaid to pay the nursing home, Medicaid will be denied due to the “divestment” of money.

Under general Michigan law the presumption of gratuitous service may be rebutted by proof of an agreement to pay. If it is not in writing it can be oral but proof of that may be difficult with a key party in a nursing home with advanced dementia.  Michigan Medicaid requires additional steps including a doctor’s finding that the services are necessary to keep him out of a nursing home.  The program also has other requirements and limitations that are discussed separately.

Under general Michigan law there is a limited exception to the rule of “no contract, no pay” and that is the theory of “quantum meruit.”  Where the proof can be made that a person received a product or service that was of significant commercial value and where the receipt implied, but did not prove, an understanding that there should be payment then the law will make the party pay the fair commercial value for the product or service.  In Michigan “quantum meruit” has been applied to family situations.  A lawyer is needed to prosecute a claim under this theory.  However, the Michigan Medicaid program does not recognize “quantum meruit” as a valid reason for payment and if such claim were to be made it would likely be resolved in court on an appeal of a denial of Medicaid.

In a second video I explain what Michigan Medicaid requires of contracts for family care.

Got a question, give us a call!  248-356-3500,

Jim

Medicare Advocacy – Now It’s A Necessity

Elder Law now encompasses a new area of counseling and representation and that is in Medicare advocacy. This is a change. It’s not that Medicare recipients never benefited from counseling now and then. There have always been benefits that were little known or understood, such as the “homebound” benefit or the extent of the Durable Medical Equipment benefit. The fact is Medicare has changed – it’s not what it used to be.

Perhaps the changes stem from efforts to reduce costs for the program. Whatever the motive, some beneficiaries have received less benefits at more expense. These results are typically the result of the elder being in a Medicare plan that is not suited to their needs. With the new Medicare, seniors should check their insurance needs against the Medicare plan they have and see if adjustments should be made. That often means changing plans during open enrollment. That can be a very prudent undertaking and sometimes an elder law attorney can make the undertaking very worthwhile. Some clients have saved over a thousand dollars a year by a Medicare plan consultation. There are three areas where the Medicare beneficiary can benefit from an informed counselor and advocate:

Medicare Advantage Plans

It is a rule of thumb in the elder law community that Medicare Advantage plans work best for the healthy senior. Here we consider benefits such as annual screenings and consultations on matters such as diet and classes for exercise with a goal being a healthier lifestyle. These programs reward proactive steps and penalize care for those who are chronically ill.
Elders with chronic conditions will often find that they are paying significant monthly medical bills in the form of doctor office visits and high deductibles. The chronically ill elder will often benefit from switching from a Medicare Advantage plan to traditional Medicare with one of the standard Medigap plans.

Medicare Plan D Prescription Plans

An elder who is taking many medications, some of which can be very expensive, can often save hundreds of dollars a year by aligning their Medicare Prescription plan with the exact medications they are taking. This requires active management since plans can change their “formularies” every year. The variables in Plan D are 1) the monthly premium; 2) the initial deductible; 3) the prescription co-pay; 4) the formulary of the drugs covered, including whether name brand or generics are on the list, and the quantity limits. Most elders can find a plan that has all of their expensive medications in the formulary. The “rule of the road” is: When you have a complete list of all medications, including dosages, you can then shop for the plan that best meets your needs and you can often save hundreds of dollars a year.

Medicare Advocacy

There are currently two areas of active advocacy: 1) Hospital “Observation Status” and the end of the skilled care “Improvement Standard.”

Observation status

Observation status is an unresolved problem. It refers to the situation where a person is in the hospital for days and then finds out they were never “admitted” for Medicare purposes but rather were in under “observation status” That means Medicare A does not cover the bill and if the patient proceeds from hospital to a skilled care nursing facility, the Medicare 100 day skilled care benefit will not be triggered. That means the patient is stuck with a shockingly large bill.

Senior organizations such as AARP and Medicare advocacy organizations such as the Center for Medicare Advocacy are working with the CMS to clarify and limit the observation status rules. We hope for a clarification later this year.

In the mean time patient advocacy requires on the spot checking with the hospital to see if there has been a formal admission or not and whether the subsequent billing codes fall under in-patient or out-patient care. Some advocates have found that the hospital billing department used the wrong codes, which did not accurately reflect the care provided and resulted in “observation status.”

End of “Medicare Improvement Standard”

There is much better news in this area. In January 2013 the federal court ruled in a nationwide class action lawsuit that Medicare could not impose an improvement standard limitation on skilled care. CMS only released official guidance in December 2013 and the word is not yet out “on the street.” Many providers still believe that a patient must improve to receive skilled rehab therapy. Not true.

The Medicare benefit should be delivered even if the patient only maintains function with therapy. The good news here is that the benefit not only applies to skilled care facilities but also therapy in-home. That means no artificial “six week” limitation for therapy in home. As long as benefit can be clinically documented the therapy can continue indefinitely.

This post has only flown over the top of Medicare advocacy. We’ll need posts later to dig into each area in more depth. Till then,
All the best,
Jim

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