Author Archives: Tom Packer

Nursing Home / Resident’s Rights

How to receive the best care possible guaranteed by the law.

The National Senior Citizen’s Law Center (NSCLC) has written an article called, “20 Common Nursing Home Problems – and How to Resolve Them.” (June 2010) This is a valuable resource in choosing a nursing home or in understanding and asserting your rights as a nursing home resident. Residents’ rights are derived from The Nursing Home Reform Law, which is a federal law that applies to all states.

The following are a few of the more common problems discussed in the article. We encourage you to visit the website below for more information.

Residents and their family members have a right to participate in developing a care plan.
Nursing homes must make reasonable adjustments in meeting the residents’ needs and preferences. For example, residents should not be told that they must wake up early or take a bath at certain times. Residents’ preferences must be taken into consideration.
Medication may not be used to make residents more manageable; it may be used only when the behavior is caused by a diagnosed illness.
One important right to be aware of is that a resident’s family member may visit any time, day or night.
Therapy, when medically appropriate, should be provided regardless of the resident’s source of payment.
Evictions from nursing homes are allowed for only six limited reasons, and a 30-day advance notice is generally required.

Because of consumers’ unfamiliarity with nursing homes and the protections provided, residents and family members are often reluctant to speak up. For example, a resident or family member shouldn’t feel sheepish to ask that necessary therapy be provided, or that a resident be allowed to sleep longer in the morning. At times a resident or resident’s family may benefit from the assistance of an attorney or other advocate to help them. Being knowledgeable about the protections in the Nursing Home Reform Law will enable residents to have the high-quality care they deserve.

The complete article can be found at the NSCLC’s website at:
http://www.nsclc.org/wp-content/uploads/2011/02/20-Common-Problems-Nov-2010-Final.pdf

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

Third-Party Special Needs Trust

Providing for a disabled child.

Sometimes parents will raise a developmentlly disabled child and continue to care for the child into adulthood. If one of the parents develops a chronic-health problem, the parent may not have the resources to care for the disabled child and to provide for his or her own needs. In such a case, the parent will frequently turn to Medicaid to help pay for care. This raises the question of how does the parent qualify for Medicaid and still provide for the disabled child?

The answer is for the parent to set up a Special-Needs Trust (SNT) for the child. A transfer of assets into a SNT for a disabled child is an allowable transfer under Medicaid rules. By making the transfer, the parent’s assets can be reduced below $2,000.00, thereby, meeting Medicaid’s asset elibility requirements.

What if the child is receiving Medicaid? Does transfering assets into a SNT make the child ineligilbe for government benefits? A third-party SNT is established with the assets of someone other than the disabled child. Therefore, if the trust is set up and administered properly, it is used to supplement not supplant public benefits. The resources available in the trust can be used to improve the quality of life of the disabled child. Once the trust is created and funded by the trustmaker, other relatives of the disabled child, for example the child’s sibliings, can direct assets to the trust. Finally, the parent can choose who the assets in the trust will go to when the disabled child passes away.

With proper planning, a parent with a chronic-health problem can qualify for Medicaid and still provide for a disabled child without disqualifing the child from government benefits.

Virtual Dementia Tour

Your Window into Their World

The Virtual Dementia Tour® is an immersion experience simulation of dementia created to teach people about the physical and mental challenges facing those living with dementia. The VDT® both helps people caring for those with dementia provide better care and offers hope to caregivers, providing tips and tools necessary to create an environment that supports the needs of those with the disease.

Over 500,000 people from elder care communities, corporations, caregivers, first responders, healthcare providers, municipal employees and nonprofit organizations in 14 countries have experienced the Virtual Dementia Tour®. Of those, 94 percent said they felt it was crucial and necessary to undergo the training in order to provide good care to those with dementia.

The Virtual Dementia Tour was created by award-winning geriatric specialist PK. Beville, M.S., founder and CEO of Second Wind Dreams®, an organization changing society’s perception of aging through the granting of dreams for elders. Proceeds from the sale of VDT products are used to support the dreams programs around the world.

If you are interested in gaining a greater understanding of the impact of Alzheimer’s disease and dementia on someone you love or care for, you are invited to participate in a sensitivity training session offered by Packer Elder Care Law. If you would like to learn more, please call 208-785-5600 or 208-542-0400.

Testamentary Special Needs Trust

A way to provide for a spouse with Alzheimer’s in your will.

When one member of a couple is diagnosed with Alzheimer’s, the other spouse is often still healthy. The healthy spouse frequently becomes the care provider for the spouse with Alzheimer’s allowing him or her to remain in their home. Being a caregiver, however, can be an exhausting and stressful responsibility and can take its toll on the healthy spouse. Consequently, it is not unusual for the healthy spouse to predecease the spouse diagnosed with Alzheimer’s. This may create a problem if the estate of the healthy spouse goes to the spouse with Alzheimer’s, since it may disqualify the spouse with Alzheimer’s from receiving Medicaid.

Fortunately, federal law allows the healthy spouse to create a testamentary Special Need’s Trust (SNT) that prevents his or her estate from passing to the spouse. Since the assets of the SNT are not available to the spouse with Alzheimer’s, they are not counted toward Medicaid eligibility. The Trust can then be used to provide for the supplemental needs of the spouse with Alzheimer’s, that are not covered by Medicaid. Money from the trust can be used for many things including medical equipment, trips or other special events which increase the dignity and quality of life of the spouse.

The following case study gives an example of how this works. Ron and Sheri had been married for several years, when Sheri was diagnosed with Alzheimer’s. Ron told Sheri that he would care for her in their home for as long as he was able. After a year of providing care, Ron is diagnosed with inoperable lung cancer and will most likely predecease Sheri. Ron changes his estate plan and writes a new will setting up a testamentary SNT for Sheri. When Ron passes away and Sheri moves into an assisted-living facility, her children can file an application for Medicaid to pay for the cost of her care. The money in the SNT will not be counted towards her eligibility for Medicaid and can be used to provide for Sheri’s supplemental needs and enhance her quality of life.

A healthy spouse, concerned about the well-being of a spouse diagnosed with Alzheimer’s, can continue to provide for that spouse even after he or she passes away by establishing a testamentary SNT.

Powerful Power of Attorney

When applying for Medicaid you need a Powerful Power of Attorney.

Kerry Peck and Rick L. Law in their book “Alzheimer’s and the Law” refer to what they call a powerful power of attorney. A powerful financial power of attorney is one that includes the power to do Medicaid-related asset protection. It might include the following provisions:

the Power to make gifts to specified loved ones such as a spouse or disabled child
the power to create a trust, or if the person has a trust the power to add or remove assets from the trust.
The power to apply for public entitlements like Medicaid

Why are these provisions important in a financial power of attorney for a person who has Alzheimer’s? Here’s an example of a situation we recently encountered.

A son hired us to file an application for Medicaid for his father. The father had no assets, however his income exceeded Medicaid’s maximum allowed monthly income of approximately $2022.00. In order to qualify the father, we suggested an approved strategy of preparing a Qualified Income Trust (Miller Trust) to reduce the father’s income below the maximum monthly income allowed.

Since the father was no longer competent to sign the trust documents, the son provided us with the copy of a standard power of attorney naming the son as the father’s agent. However, the power of attorney failed to state that the son had authority create a trust.

Several banks advised us that without this authority they would not set up a checking account for the Trust. The son was faced with the prospect of having to go to court and apply for a conservatorship, with its additional cost and reporting requirements to get the authority he needed to set up the Trust.

This situation could have been avoided by creating a powerful not powerless power of attorney. If filing for Medicaid is a possibility for an older adult, remember to include in the financial power of attorney the authority to complete the necessary transactions to qualify for Medicaid.

Hospital Stays

Two Words You Must Understand: “Observation Status.”

If you are on Medicare, there are two words you need to understand that will save you unneeded stress and money. They are: “Observation Status.” When you or a loved one are taken to the Emergency Room, you can save yourself thousands of dollars by clarifying if you are on observation status or not.

Medicare pays for inpatient and outpatient services very differently. If you are on observation status, you have not been admitted to the hospital and are considered to be outpatient, even if you sleep in a bed over night. Confused yet?

So, why should you clarify if you are on observation status? Medicare Part A will only pay for a hospital stay if you have been admitted to the hospital with a doctor’s order; it will not pay if you are on observation status. In addition, observation status does not qualify you for the 3-day stay in the hospital that is required for Medicare Part A to pay for a skilled-nursing facility.

Let me give you an example. Sally was taken to the Emergency Room by her daughter. Sally received care, treatment and ate and slept at the hospital for 4 days. Upon discharge the doctor ordered rehabilitation to a skilled-nursing facility to help her recover strength and mobility prior to going home. Sally and her daughter were under the assumption that Medicare would pay the bill. They were shocked when Sally received a bill for close to $15,000.00 after she returned home from the nursing facility. Unfortunately, Sally found out after it was too late that she had never been officially admitted to the hospital, but was only on “Observation Status”, and therefore Medicare would not cover her stay.

Next time you find yourself at the hospital, make sure you clarify your status. Simply ask your doctor or the hospital staff, “Am I admitted Inpatient”, or “Am I on Observation Status?” You will be glad you did.

Healthcare Advocates for Seniors

When navigating the healthcare system, you don’t have to go it alone.

While working on my taxes recently, I talked with my son, who is a CPA. I soon realized that I need to stick to what I know. I’m a better elder care attorney than a tax accountant. I turned my taxes over to my son, when he offered to help me with them.

In life, we often attempt to do things on our own, when we might be better off asking for a little help. In my law practice, when clients ask me if they need an attorney to draft their will or file a Medicaid application, I tell them what I believe to be true—that they can do it on their own; however, it may be more frustrating and time consuming and the outcome will probably not be as good. This same principle holds true for older adults, who are trying to navigate the healthcare system.

Consider the following case example:

Betty is an older woman with multiple chronic health problems. In the past 6 months she has been admitted into different hospitals and transferred between rehabilitation facilities several times. Her health and physical condition are starting to decline. A review of her medical records indicates a lack of continuity of care, which is contributing to her decline. Betty needs an advocate in the healthcare system: someone who knows the right questions to ask and will ensure there are not gaps in her care.

As an Elder Law Attorney, I regularly visit with clients who are vulnerable in the healthcare system. When I shifted my practice to Elder Law, I realized that my clients not only needed help with legal and financial matters, but they also needed an advocate in the healthcare system. As a law office, we can address Medicare and Medicaid reimbursement questions, monitor compliance with federal regulations for providing quality care, and address patient safety concerns. I worry about my older clients, like Betty, who are all alone and need help navigating doctor appointments, hospital stays, and transitions to and from facilities.

To better advocate for my clients in the healthcare system, I hired social workers, over three years ago, who share my desire to help individuals meet their goals, while maintaining their independence and quality of life.

Having an experienced law firm on their side, will ensure that Seniors get the care they deserve and allow their loved ones to rest easy.

Aging in Place

The Idaho Home Choice Program helps older adults who want to live in their homes to have the support of a Transitional Care Manager.

It is predicted that by 2030, the U.S. population will be comprised of nearly 72 million people over the age of 65. This trend in aging, referred to as the “graying of the population,” will place additional pressure on the Medicare and Medicaid programs (Hooyman & Kiyak, 2012). Acting with foresight, many states are moving toward initiatives that assist older adults with aging in place.

Many older adults want to stay put and relax in the comfort and familiarity of their own home. Many things can be done to assist the elderly with this process. In Idaho, the Department of Health and Welfare has initiated a program to mitigate the rising costs of healthcare for the elderly by assisting them to stay in their homes.

Beginning in 2011, the Idaho Home Choice Medicaid program began administering and matching federal grant monies to aid individuals who desire to move from a facility to living in the community in a home or apartment. The cost savings to the Medicaid program is significant (Idaho Department of Health and Welfare). More importantly, older adults who desire to live in the community have the support of a Transitional Care Manager to oversee this process and assure they receive quality care in keeping with the goals of older adults.

Prior to this program, many adults lacked support from family or the community to assist with transitioning home from a facility. Policymakers have responded and presented a viable solution. The solution is economically sound. More importantly, it allows older adults to enjoy a sense of autonomy and live in a less-restrictive setting.

Caregivers Need A Personal-Service Agreement

When elderly parents begin needing assistance in their daily lives, adult children are often called upon to help care for them. Usually this begins with an adult child helping around the house, paying some bills, running to the store, or fixing meals. To make it easier to manage their finances, elderly parents frequently give their adult children a financial power of attorney or add them to their checking and savings accounts. More often than not when this occurs, there is poor record keeping and a frequent commingling of the parent’s and the children’s funds.

When parents are diagnosed with dementia or Alzheimer’s, their care needs escalate, and the demands on caregiving children increase. Many times the caregiving child will reduce hours at work or even quit a job to provide care for an aging parent.

Many parents and their caregiving children in these situations do not see a need to have a written agreement; this is, however, exactly what they do need. These informal care arrangements, with their comingling of funds and poor record keeping, can lead to investigations by adult protection for financial exploitation and to sibling claims that the caregiver child is taking “all of mom’s money.” If money is given to the caregiving child without a contract in place, the parent may also become ineligible for Medicaid.

A Personal-Service Agreement can resolve these concerns. The Idaho Administrative Procedures Act provides that transfers of income to a relative for personal services will result in ineligibility for Medicaid unless the following guidelines are followed:

· A written contact for personal services was signed before services were delivered.

· The contract must require that payment be made after services are rendered.

· The contract must be dated and the signatures notarized.

· Either party must be able to terminate the contract.

· The contract must be signed by the participant or a legally authorized representative through a power of attorney, legal guardianship or conservatorship.

· A representative who signs the contract must not be the provider of the personal-care services under the contract.

· Compensation for services rendered must be comparable to rates paid in the open market.

Caregiving children should also keep detailed records of the personal-care services that they provide and the expenses that they incur. A written contract and adequate records will protect the caregiving child from claims of financial exploitation by adult protection and disgruntled siblings and will establish that transfers of income to the child complied with Medicaid rules.

We want to wish all a Merry Christmas.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers life care planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

Plan Today for a Better Tomorrow

Most people understand that estate planning is important, even though they frequently put it off because it is hard to think about leaving their loved ones. It is critical to plan for the giving of property, succession of a business, incapacity, guardianship of minor children and end-of-life issues. By establishing your goals and having a plan in place, you will be prepared for the future, and you will take the stress off of your loved ones.

If you do not plan, your estate will be probated and your property may pass to persons you didn’t intend. If you have a Will, your estate is still probated; however it will be done more smoothly and according to your wishes. For smaller estates, it may be more practical to transfer property using a pay-on-death account and a deed that reserves a life estate.

To avoid probate, many people will use a Revocable Living Trust, which is often more expensive and complex than a Will and can complicate eligibility for Medicaid.

Many people plan their estates, but fail to plan for incapacity. It is essential, before you become incapacitated, that you give someone authority to handle your finances using a Financial Power of Attorney and to make healthcare decisions for you using a Durable Power of Attorney for Health Care. By completing these documents, your family will know your wishes, and you will avoid the need for costly guardian and conservator proceedings.

In summary, here are 10 things that estate planning can do for you:

1. Provide security and guidance for your immediate family.

2. Provide for other relatives who need help through special trusts.

3. Get your property to beneficiaries easily and quickly.

4. Plan for incapacity by choosing who will make decisions for you.

5. Minimize expenses by reducing the court’s involvement.

6. Reduce estate and inheritance taxes.

7. Make sure your business has an orderly succession.

8. Ease burdens by letting your family know your wishes.

9. Set up a way to give financial support to a favorite cause.

10. Have peace of mind knowing that your desires will be carried out.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers life care planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.