Category Archives: Senior Tips

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.

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.

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.

Medicare Supplemental Insurance and Open Enrollment

Individuals who are age 65 or older and receiving social security are automatically enrolled in Medicare Part A, which is premium free and covers hospital and skilled-nursing costs and hospice care. Individuals may also enroll in Medicare Part B, which has a premium, and covers physician, medical lab and ambulance costs. Individuals who can still obtain private insurance through their employment will often postpone enrollment in Medicare Part B.

After individuals enroll in Medicare Part B, they have six months to select a Medigap policy (Medicare supplemental insurance). The open enrollment period to select a Medigap policy begins on the first day of the month when the individual is 65 and is enrolled in Medicare Part B.

During the 6 month open enrollment period an insurance company cannot use medical underwriting. This means that the insurance company cannot do any of the following because of a preexisting health condition:

1. Refuse to sell a Medigap policy.

2. Charge more for a Medigap policy that it would charge someone without a preexisting condition.

3. Make the individual wait for coverage to begin.

In some situations, individuals who have selected a Medicare Advantage plan under Medicare Part C may still be able to subsequently go back to Medicare Parts A and B and obtain a Medigap policy without medical underwriting.

If individuals do not select a Medigap policy during the open enrollment period, and they sign up on a later date, or if they change their Medigap policy, they will be subject to medical underwriting and will likely pay a higher premium for their supplemental insurance.

Medigap policies fill the gaps not covered by Medicare Parts A and B. Medigap policies are based on 10 standardized benefit packages developed by the National Association of Insurance Commissioners (NAIC). The current Medigap policies are the following: A, B, C, D, F, G, K, L, M, and N.

Some Medigap policies cover skilled-nursing facility costs and others do not. After a three-day hospital stay, Medicare Part A will pay all the costs of a skilled-nursing facility for the first 20 days; however, from day 20 through day 100, the patient is responsible for a daily co-payment. (In 2012 the co-payment was $144.50 per day.) If an individual has a Medigap policy that covers skilled-nursing facility costs, the copayment will be paid by the supplemental insurance. Individuals who do not have a Medigap policy that covers skilled-nursing costs, are surprised when they get a large bill from the facility.

Insurance companies do not have to offer every Medigap policy. Each company decides which policies it wants to offer, and the premiums it will charge. The premium offered by different insurance companies for the same policy may vary.

Consumers need to enroll in a Medigap policy during the six month open enrollment period and make sure they understand the services covered by their Medigap policy.

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.

Medicaid Eligibility and Patient Share of Cost

After the Department of Health and Welfare deems an individual eligible for Medicaid, the next question that families face is this: “What portion of the individual’s monthly income must be used to pay for their care?”

When families come in to visit with me about paying for long-term care for a loved one, the conversation often culminates in an application for Medicaid. During this initial conversation, families are narrowly focused on figuring out how to pay the high costs of facility care. After the Department of Health and Welfare deems an individual eligible for Medicaid, the next question that families face is this: “What portion of the individual’s monthly income must be used to pay for their care?”

The Department of Health & Welfare refers to the portion that the individual pays for their care as ‘patient liability’ or ‘share of cost.’ A formula, with several variables, is used by Health & Welfare to determine each individual’s countable income and resulting patient liability. For example, for a single individual in long-term care with no spouse, patient liability is determined as follows:

Income of Participant in Facility $700.00

Less AABD exclusions – 0.00

Less certain deductions to income:

Aid and Attendance from VA – 290.00

Personal Needs Allowance – 40.00

Total Patient Liability $370.00

(The variables used are for the purpose of illustration only.)

This person would be required to pay to the facility $370.00 per month as a condition of his continued eligibility. Other variables which may reduce total patient liability include: the first $90 of a VA pension, a VA Aid and Attendance Allowance, and the cost of home maintenance up to $212 if the individual is likely to return home within six months.

For married couples, rather than impoverishing the spouse who remains at home, the federal government has enacted legislation which allows the at-home spouse to keep a portion of the monthly income of the spouse that is in a facility. This is called a Community Spouse Allowance and may reduce the patient liability. Let’s look at an example:

John’s medical problems require him to live in a skilled-nursing facility. His wife, Amy, is healthy and remains in the family’s home. John’s income is $3300.00 per month and Amy’s is $600.00. The couple elects the ‘community property’ method of determining ownership of income.

Income of Couple $3900.00

Less AABD Income Exclusion 0.00

Less Personal Needs 40.00

Less Community Spouse Allowance 1946.00

Total Patient Liability $1914.00

In this example, John would be required to pay to the facility $1914 per month to continue Medicaid eligibility.

Many different variables influence the amount an individual is required to pay. It is important that these variables are disclosed to Medicaid during the application process. Failure to do so may result in a higher share of cost. If you have questions about Medicaid, contact an Elder Law Attorney.

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.

Holographic Wills

Holographic wills are frequently ambiguous, challenged by heirs and result in costly litigation.

A holographic will is one written in the handwriting of the person making the will. In Idaho a holographic will is valid, whether or not it is witnessed, if the signature and the material provisions are in the handwriting of the testator. (Idaho Code §15-2-503) Even though Idahoallows holographic wills, they can cause many problems.

A brief example illustrates this point. A woman brought in the will of her sister, who had recently passed away. The sister had handwritten her will in a fill-in-the-blank form that she had obtained. Because of ill feelings toward some of her siblings, the sister had left her entire estate to the woman who had brought in the will, leaving nothing to her other 2 siblings.

When we filed the will for probate, it was quickly challenged as invalid by the excluded siblings because the material provisions were not completely in the handwriting of the sister. The woman who brought in the will claimed she had many witnesses who would testify that her sister intended to leave her everything; however, it was clear the will was invalid and the sister’s estate would be divided equally amoung the siblings under Idaho’s Intestate Laws. This is what eventually happened.

Holographic wills are frequently ambiguous, try to do things that cannot easily be done, lead to challenges by potential heirs and result in costly litigation.

If holographic wills foster litigation, which perpetuates feelings of bitterness among the heirs, it would be better to seek legal advice from an attorney in drafting the will.

Capacity in Guardianship and Conservatorship Proceedings

Guardianships and conservatorships for older adults are on the rise, probably due in part to the baby boomer generation growing older. In guardianship and conservatorship proceedings judges are asked to determine the capacity of protected persons. These decisions are complex, and in making them, judges have to balance the individual’s well being against the loss of their individual rights.

In the handbook, “The Judicial Determination of Capacity of Older Adults in Guardianship Proceedings”, developed by the American Bar Association and the American Psychological Association, six guidelines for determining incapacity are listed:

Medical Condition: What is the medical cause of the individual’s alleged incapacities and will it improve, stay the same, or get worse?
Cognitive Functioning: In what area is the individual’s decision-making and thinking impaired and to what extent?
Everyday Functioning: What can the individual do and not do in terms of everyday activities? Does the individual have the insight and willingness to use assistance or adaptations in problem areas?
Consistency of Choices with Values, Patterns, and Preferences: Are the person’s choices consistent with long-held patterns or values and preferences?
Risk of Harm and Level of Supervision Needed: What is the level of supervision needed? How severe is the risk of harm to the individual?
Means to Enhance Functioning: What treatments might enhance the individual’s functioning?

These guidelines are evaluated in relation to Idaho’s statutory definition of incapacity found in Idaho Code §15-5-101:

“Incapacitated person” means any person who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.

“Incapacity” means a legal, not a medical disability and shall be measured by function limitations and it shall be construed to mean or refer to any person who has suffered, is suffering, or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, healthcare, or safety, or an inability to manage his or her property or financial affairs.

According to the handbook, the judge’s role in making a capacity determination is to:

protect rights
promote self determination
identify less restrictive alternatives
provide guidance to guardians
craft limited guardianships when possible

Guardianship and Conservatorship

Sometimes families need to petition a court to obtain a guardianship or conservatorship for a loved one who has diminished capacity. Because the court would be taking away the fundamental right of self determination—the right to determine where one will live, who one will live with, how one’s money will be managed, and what kind of medical treatment one will receive—this is never an easy decision. In deciding these cases, courts are put in the difficult position of balancing the individual’s rights against ensuring the individual’s safety and well being.

In Idaho, a guardian is a person appointed by the court to take care of another person called the ward. A conservator is a person appointed by the court to manage the financial affairs of the ward. The guardian and conservator may be the same person, or they may be different persons. In some cases, the court may appoint only a guardian or only conservator depending on the circumstances and needs of the ward.

In recent years, guardianships and conservatorships have been undergoing a dramatic revision. Guardians and conservators are required to complete a training course before the court will issue an order appointing them. Courts are using limited guardianships and conservatorships more frequently, giving only the authority the guardian or conservator needs to assist the ward and to maximize the ward’s autonomy. Finally, courts are providing oversight by requiring the guardian and conservator to file annual reports, so that the court can monitor the ward’s finances and status.

Occasionally, children of elderly parents petition for guardianship and conservatorship to get control of their parents’ assets, rather than seeking the best interest of their parents. In such cases, the children should not be appointed guardian or conservator and a more suitable person should be found.

The decision to grant a limited or a full guardianship or conservatorship comes down to the capacity of the proposed ward. Making a comprehensive capacity assessment gives the court the ability to tailor a guardianship or conservatorship to the ward’s specific needs. Next month, we will discuss how capacity assessments are made.

Long-Term Partnership Program – June 2012

One of the biggest challenges facing seniors is financial security. A key aspect of this challenge is the need for long-term care insurance verses the affordability of the policy. The federal government is trying to help. In 2005, Congress passed the Deficit Reduction Act (DRA) in an effort to encourage and enable people to purchase long-term care insurance. The DRA created the Qualified State Long-Term Care Partnership program, which offers long-term care insurance policies that allow buyers to protect assets and qualify for Medicaid when the long-term policy benefits run out. When you purchase a policy, the state will not count an equal amount of assets as the face value of the policy when it determines your eligibility for Medicaid assistance.

For example, if you are single you would normally be allowed to keep only $2,000 in assets to qualify for Medicaid. However, if you buy a Qualified Long-Term Care Policy that provides a $150,000 of benefits, you would be allowed to keep $152,000 in assets and still qualify for Medicaid. When purchasing long-term care insurance it is important to purchase a qualified policy and to understand the different coverage options offered under the policy. For example some policies will offer inflation protection of 5% a year and non-forfeiture benefits which returns a least part of the premiums to you if you cancel or let your policy lapse. You should also understand when the policy will begin to pay for your care, what services are covered (skilled nursing facility, assisted living, home care) and the length of care covered.

To get more information call the Idaho Department of Insurance Senior Health Insurance Benefits Advisors at: 1-800-247-4422.