Elder Law

Friday, November 19, 2010

California Medi-Cal Program to Help with Nursing Home Bills

Medi-Cal is California’s Medicaid program, which is funded by both federal and state funds. It is overseen by the Department of Health Services. Medi-Cal has two divisions: one of them provides regular medical care for low-income individuals and the other provides assistance with paying for the high costs of nursing home care. This information is geared towards eligibility for the Medi-Cal Long Term Care program. To receive these Medi-Cal benefits, the applicant’s (and spouse’s, if married) assets must be within the Medi-Cal resource limits. If assets exceed the Medi-Cal resource limits, the excess must be “spent down” until the guidelines are met.

 The first and most important concept of understanding Medi-Cal Long Term Care eligibility is the way the state classifies assets into 3 categories: Countable Assets, Exempt Assets, or Unavailable Assets. (Exempt and Unavailable assets will not affect a person’s eligibility for Medi-Cal Long Term Care…in other words, these assets are not counted.)

A. Countable Assets.

1. Resource Limits: An applicant cannot have countable assets in excess of the applicable resource limits, which for the year 2009 are as follows:

Single Applicant: $2,000.00 In applicant’s name; no other assets

Married Applicant: $2,000.00 In applicant’s name

Applicant’s Spouse: $109,560.00 In spouse’s name

Both spouses in long term care: $2,000.00 in each spouse's name;no other assets

2. What Assets are Countable? These must be spent down and/or converted to Exempt or Unavailable assets prior to application:

Bank Accounts (Checking/Savings)

B. Exempt Assets.

 The home and home improvements

C. Unavailable Assets.

 Listed Real Estate

Treatment of an individual’s income is different than that of their assets. Once an applicant meets the proper asset resource requirements, the state will then look at their income to determine their Share Of Cost, or their contribution towards their monthly cost of care.

A. Income (monthly) – includes: social security, pension, interest, dividends, etc.

B. Income is used to determine SHARE OF COST (all income is counted, less a $35 personal needs allowance)

C. SPECIAL RULE FOR MARRIED APPLICANTS: The spouse remaining in the home must have a Minimum Monthly Maintenance Needs Allowance of $2,739.00 per month before the applicant spouse’s income will be counted towards his or her Share Of Cost.

D. If monthly income is GREATER than the applicant’s cost of care, the applicant does not need Medi-Cal Long Term Care benefits because the assets (principal) will not be exposed to spend-down.

 The Look-Back Period is a period of time during which Medi-Cal is allowed to inquire about an applicant’s financial history and question them about transactions and transfers made within the 30 months prior to application. THIS IS NOT A 30-MONTH BAR TO TRANSFERRING PROPERTY. In other words, an applicant can make transfers of their property during this time, however certain transfers may give rise to a period of ineligibility. (See Gifts/Period of Ineligibility below.) Furthermore, for transfers made to or from an irrevocable trust, the Look-Back Period is 60 Months.

 A. An applicant is allowed to make gifts of their property during the 30 months prior to application; however such gifts may cause a period of ineligibility to apply. This is simply a period of time during which an applicant is not allowed to apply for Medi-Cal Long Term Care benefits. Once this period of ineligibility expires, the applicant can then apply.

B. For every gift of $5,698, a one month period of ineligibility is created.

C. Example: A $20,000 gift divided by $5,496 equals 3.6 months. Medi-cal rounds down and reduces the period of ineligibility to the lowest full month. In this example, the ineligibility period assessed would be 3 months. In month 4, the applicant can submit an application.

Wednesday, November 17, 2010

Finding a Caregiver

Finding the right home care employee is very similar to choosing the right professional - it takes time to be sure that the selection process is proper, and sometimes the only way that you know you have done a good job and selected the right person is after the fact, through experience. However, the proper process is important. 

If an elder loved one is in need of homecare services, normally the first action is to search for candidates. The best ones will often come through word of mouth. If another client of an agency is satisfied with the care and support provided, this is normally a good reference point. If a personal reference is not available, then contacting a local discharge planner at a facility, or contacting the local senior citizen group, such as a council on aging, senior center, or social service agency may be the most appropriate means of finding the right agency. 

The next step is to interview the caregiver candidates you find through your search. Keep searching and interviewing until you find the most appropriate person to serve. Make sure that that person has the requisite ability, experience, and compassion to attend your loved one at home. For instance, the proposed caregiver may have significant experience with a person regarding bathing, dressing, feeding, etc., but perhaps they have not dealt with a person with a memory disorder such as Alzheimer’s. 

If the caregiver is merely providing light housework, cooking, and companionship, then would he or she also have the ability to transition into a higher level of care if and when the elder needs those services? If the caregiver needs to administer medication, do they have a license to do so? Also, the caregiver should be questioned as to whether they are available for additional hours if needed. 

Most agencies have pre-printed agency agreements, and it is very important to review these contracts before signing them. Sometimes the agency is willing to negotiate a change in the contract, and other times they are mandated through a parent company to not adjust the standard agreement. In most agreements there are provisions that the termination of the employee may be at will, without any advance notice or pre-payment.

On the other hand, there may be a provision that if the family wishes to engage the services of the caregiver privately, then there is a significant “buyout” fee that the family must pay to the agency. Also, provisions regarding whether the caregiver is expected to use their own automobile for transportation to doctor’s appointments, sporting events, and activities such as movies, lunches, etc. should be outlined. Most reputable agencies are licensed and bonded, and if desired, these certificates of insurance and liability should be provided to the family prior to the contract’s completion. 

The family should clearly define what they need and want for their loved one prior to the signing the contract. It is important for both parties to understand their duties, responsibilities, and the anticipated care prior to the signing of the contract to prevent problems in the future if the services are not provided as expected.
But in getting back to the process of finding the right caregiver for your loved one, your gut reaction is rarely wrong. Do your homework and don’t be hasty.

Wednesday, November 17, 2010

What You Need to Know About Elder Abuse in California

WHEN IN DOUBT, CALL ADULT PROTECTIVE SERVICES.  BETTER TO BE SAFE THAN SORRY!

Huguette Clark and Brooke Astor have a lot of things in common. They both were wealthy beyond wildest imagination, they both enjoyed their 104th birthday, and they both seem to have suffered elder abuse at the hands of the people they entrusted with their care. 
 
In 2009, Brooke Astor's son and attorney were convicted of stealing $10 million from the socialite's $100 million fortune. Today, investigations into the actions of the advisors (attorney and account) for104-year-old Huguette Clark, a reclusive heiress worth half a billion dollars, are being conducted by the New York District Attorney’s Office.  
 
It begs the question, who would steal from your grandmother? The answer unfortunately is far too common. In the Astor case, Brooke’s own son was convicted of grand larceny and in Huguette’s case, the lawyer and accountant are being investigated. Sadly,  the issues surrounding the handling of the money of these two women are not unique.   
 
It is estimated that near half a million elderly people are being abused by family, friends, and/or advisors, potentially taking $2.6 billion from infirm older Americans. The crime is known as elder financial abuse. Financial expert and consumer advocate, John Wasik has called it "the crime of the 21st century."
 
How does it happen? Many of these elderly people are too sick or infirm to know that abuse is taking place or to be able to report the abuse. If a person has dementia or alzheimer’s disease they are not going to know that their money is being squandered. For those that suspect there is an issue, fear of abuse, abandonment, and retribution also play a role in keeping them from reporting their concerns. 
 
Commonly, the tool used by the criminals who steal from the elderly is the power of attorney document, which enables a designated person to make the financial decisions on behalf of another. The decisions of the person exercising the power of attorney are rarely reviewed, and the document has been called a "license to steal." Even though there is a fiduciary responsibility on the part of the person appointed, if no one is holding them accountable, they can get away with the crime.  
 
In order to protect the elders in your life, it is of the utmost importance to get involved and stay involved in their lives. The crimes are often unreported or not pursued because relatives or friends are not involved in an elder’s life or assume that someone else is looking out for them. People are reluctant to get involved because they do not want to be perceived as a trouble-maker or greedy. The concern that they will be regarded as only looking out for their own interests in an inheritance also often keeps people from speaking up. 
 
Remember that this is abuse, and if there is financial abuse, there is likely other forms of abuse occurring as well. Having as much information as possible is helpful. Ask questions, lots of them. Get documents like bank statements and investment records. Keep in mind you are not alone, every state has an Adult Protective Services agency. Find the one that serves your area, and make a report. The new healthcare reform package has a provision called the Elder Justice Act, which set aside nearly $800 million to expand efforts to investigate elder financial theft over the next four years. This is a growing problem and elder care professionals are working to stem this type of fraud and abuse. 
 
But make no mistake, the power of attorney is not the problem itself. It is a good and very useful document, and as estate planners and elder law attorneys, we do recommend executing one and will continue to do so. However, the power of undue influence is so great that if a family member, or friend, or advisor is entrusted to care for an elder, they are often trusted to the point they can drive that elder to the bank and stand by while money is withdrawn and turned over to them. You would be surprised often this happens. You would also be pleasantly surprised to know that on numerous occasions, very astute and well intentioned bank tellers report the incidents. They get involved and by doing so are thankfully able to thwart a theft or prevent a future abuse. 
 
Do not be confused, just because Susie is going to inherit all of her mother’s money when she dies, this does not mean that Susie can help herself to part, some, or all of her mom’s money during her mother’s lifetime. Susie is not entitled to it until she actually inherits it at the time of mom’s death. Susie may be paying for kid’s college education, trying to save her own house from foreclosure, or heading for a lavish vacation on Mom’s money, however, not one of those reasons is justification for taking mom’s money. Hey Susie...its not your money! Mom still has to pay for her healthcare, housing, and living expenses. And what if mom needs a vacation?. Once its gone, the money is gone, and that can happen pretty quickly these days. Do not be afraid to get involved.
 
If you suspect an elder is being taken advantage of by a family member, friend or anyone else. Do not sit idly by. If it were you, your grandmother or grandfather, wouldn’t you want someone to help?

Tuesday, November 16, 2010

When Your Health Care Proxy and Attorney In Fact Disagree About Your Health Care

There has been some discussion recently relative to the workings of a Health Proxy (HCP) and a Power of Attorney (POA.) While the HCP agent attends to all medical decisions regarding the principal, who may then become physically or mentally incapacitated, it is the POA who attends to the payment of all bills and collection of income and assets of the incapacitated person. Often times, the principal may determine that the same person should not serve as both the HCP agent and the POA agent. Therefore, the principal may name two different individuals to serve in the respective capacities.

It is important that both individuals, if they are not the same person, will work together in the best interest of the principal, as there may be a conflict. For instance, the HCP agent is charged with the determination of the medical care for the principal. This may possibly include 24/7 home care or placing the person in an assisted living facility or long term care unit. While the HCP agent is making this decision, it is up to the agent under the POA to pay for the care that is contracted. 

Different facilities may elect to have either the POA, the HCP, or possibly both, sign the admission forms and responsibility forms for the principal when the admission is allowed. So long as both parties agree, and there is no conflict, the best interests of the incapacitated person are going to be carried out by the partnership between the decision makers. However, when one of the decision makers does not agree, it becomes a true conflict that must be resolved. 

The HCP agent may determine that the principal needs long term care and institutionalization. The POA may believe that the person does not need that level of care, but rather can use either assisted living or home care with either a significant amount of caregivers or perhaps 24/7 care. In the event of a disagreement, one of the decision makers will have to petition the Court for authority to take over. In these situations, it could be an expensive, long, drawn out process taking several months before a decision is reached by the Judge. Once the Trial Judge makes a decision, it is likely that one of the parties will appeal the case to the higher court. This is an unfortunate circumstance, as the incapacitated person is now possibly paying for two lawyers, one to represent the person in defending an action, and the other to pursue an action against the incapacitated person. In the alternative, perhaps the parties may seek the guidance of a mediator who is trained in resolving conflict without the need for court action. This is also expensive, time consuming, and public. 

Therefore, it is important to consider naming the same person to serve in all documents, or whether it is better to have separate decision makers to deliberately involve more people and provide as more oversight for the best interest of the principal. Often, a person merely names the oldest child or their closest living child, who may not be the best person to serve in all capacities. While there is no right or wrong, it is important to consider the maturity, time available, expertise, geographic addition, and all other factors regarding the decision maker on these documents before naming them.