Medicaid Matters: Plan for When Your Ill Spouse Leaves Home

 

You may see it coming: Much as you want to and hard as you try, you just can’t take care of your ill spouse at home any more. At this emotionally difficult time, the last thing you need is the stress of not knowing where to find the money to pay for the steep costs of institutional care.

Advance planning is a must. As soon as you can – ideally at least five years before serious health problems arise – take advantage of many elder attorneys’ willingness to talk with you for free, or for a modest initial-consultation charge.

We are here to help you navigate the complexities of the Medicaid program. This is a governmental fund available to meet the staggering expense of institutional care, but the ins and outs of the qualification rules are complicated and mistakes can be costly. Here’s a thumbnail to help you grasp what your attorney will be telling you.

 

 

Resources” and “Income”: The Difference

Medicaid assistance is available only to those who own very little. The Medicaid rules determine what “owning very little” actually means. A person can only own around $2,000.00 of what Medicaid calls “resources.”

Resources include cash in the bank, CDs, the cash value of insurance policies, investments, and the like. Income includes regular paychecks, Social Security, or payments received for child support. Both income and resources are potentially “counted” by Medicaid as “available.” To qualify for assistance, available income and resources must be carefully spent or transferred away.

 

Exempt Resources

Some resources are not counted or, in other words, are exempt. This means the Medicaid rules exclude them from adding up to the $2,000.00 limit. These resources are sheltered from Medicaid’s requirement that the applicant must spend down almost everything before assistance will be available.

A married couple’s residence, one motor vehicle, household goods and furnishings, medical equipment, jewelry, and other items are exempt. This means that an ill spouse can still qualify for Medicaid assistance even if the couple owns those resources. There’s no need to give them away or sell them to qualify.

The distinction between “exempt” and “non-exempt” assets can be tricky, though, and should first be assessed by a qualified elder-law attorney before any action is taken.

 

What the Well Spouse Can Keep

The Medicaid rules permit a spouse who remains at home to keep a portion of the couple’s resources. This is known as the “community spouse resource allowance” (CSRA). Of course you’d like to see the well spouse keep as much as possible within the CSRA limits. Planning can arrange the distribution of resources to make that happen.

Here is where the difference matters between “resources” and “income.” Medicaid distinguishes between the well spouse’s income and the couple’s resources. Resources over the CSRA limit must be spent down or carefully transferred. As to income, the well spouse can keep it up to a certain level, so he or she will have enough money to live on. The Medicaid rules call this the “monthly maintenance needs allowance” (MMNA).

For example, if the well spouse gets Social Security benefits of only $500.00 a month, but her allowed MMNA is as high as $2,000.00, it makes sense to convert some of the couple’s resources into raising her income up to the MMNA limit. This is not a simple matter, though, and should be done only on the advice of a qualified elder-law attorney.

Planning for Medicaid eligibility can be complicated. Please consult an elder-law attorney as soon as possible. The sooner you plan, the more strategies are available to protect your resources. An initial consultation with a qualified elder-law attorney, for free or for a modest amount, could save you many thousands of dollars.

Don’t delay.

What You Need to Know About Ancillary Probate

If you own a home, a boat, or other property out of state, your heirs might need to go through another probate or court process to receive it. This is known as ancillary probate.

The laws of the state where the property is located will determine how it’s divided, should you not place it within your own trust agreement.  Some things to consider as you plan your estate include the potential difficulties of ancillary probate, such as extra work and legal and accounting fees.  

The Ancillary Probate Process

If you’ve filed a will for property in the state where you live, all probate procedures will start there. The probate court in your home state may need to accept or admit the will with your out-of-state property, if there aren’t any challenges, as a “foreign” will.  The out-of-state court should then also accept it or have its own independent process.

The ancillary probate process is often shorter than the one in the primary state, however, the executor or administrator of the primary last will and testament may need a lawyer in the second (or third) state to handle the procedure. The executor needs the same powers and responsibilities in each state for authority over the property.

Potential Shortcuts

Ancillary probate may be simplified, and sometimes, you can avoid it altogether. State laws differ, so it’s best to discuss with your own attorney to determine how they apply in the locations involved. For example, in the home state, the executor might need only to file letters of authorization and a copy of the will there to avoid having to be appointed executor in the second state. Among the alternatives, if it is a possibility, you could consider small estate proceedings if the property isn’t too valuable.  

Other options for avoiding ancillary probate may include:

  • funding the property into a trust agreement (whether or not a will already exists)
  • a transfer-on-death deed
  • adding a co-owner to the title or joint tenancy with the right of survivorship
  • selling or transferring the property before death

It can be tough to think about the future, especially when time is of the essence. Remember, you don’t have to do it all alone. If you need help on this issue or any other, don’t hesitate to contact us for advice and support.  

Veterans, home health care and technology

Mountain Empire Legal firm logoThe Department of Veterans Affairs (VA) has become an unlikely and innovative pioneer in the quest to provide cost-effective, quality home health care for veterans. Although the agency has long been mired in controversies surrounding its programs, particularly arbitrary caregiver dismissals, the home health services sector of the VA has long been touted as an overall success story. As Thomas Edes, director of comprehensive geriatrics and palliative care programs for the VA puts it “We’re working in this environment of challenging budget constraints, and at the same time, we’re a very mission-driven organization. Put those together and what happens? That really pushes us to innovate.”

This innovation has seen home-based primary care for veterans quadruple since 2000, and all VA medical centers throughout the US now have a palliative care program as well. The VA Medical Foster Home program care has expanded from a pilot to a national program, recognized in at least 45 states and providing veterans housing as well as in-home care. These success stories are great news for veterans and a must for the Veterans Administration in part because the median age of a veteran is now 64 and the US aging veteran population is growing even faster than the senior civilian population.

It is not just the “new-comer” seniors straining the VA health care system. Nationwide the 85 plus population is on track to increase 70% from 2000 to 2020 according to the US Department of Health and Human Services. The overall unsustainability of the US health care system has forced the hand of the VA, and there is no more cost-effective way than through subsidized, at home family and community-centered health care and technology to meet veterans’ care needs.

The Official Blog of the U.S. Department of Veterans Affairs reports that Telehealth is revolutionizing veteran care and providing high-quality treatment for them. The VA Video on Demand is delivering convenient, accessible health care particularly to those 24 plus percent of veterans who live in rural and remote access locations. Telehealth is also important for those veterans who are disabled. Although a veteran might live in a city they might be unable to get themselves to a medical center for an appointment.

Assisted living technologies for veterans include assistive mobility equipment – an ever-expanding category including wheelchairs, all-terrain vehicles, exoskeletons and in-home ceiling track mobility systems. Each of these continue to be refined and specialized to meet the individual veteran’s needs. The Veterans Administration awards grants to develop technology to assist veterans and service members in modifying their homes. Adapted computer access and electronic aids to daily living and environment control units (personal assistants) provide customized interactive abilities for veterans.

Electronic cognitive devices help veterans who struggle with activities of daily living (ADL). These devices include personal digital assistants (PDAs), smartphones, pocket personal computers (pocket PCs) and other handheld devices, global positioning systems (GPS), reminder watches, pagers with reminder features, and digital voice recorders. The use of these devices helps a veteran stay on schedule with medications as well as stay connected with family, friends, and their medical monitoring community. Those veterans with Post Traumatic Stress Disorder (PTSD) are further helped with their ADLs when robots with artificial intelligence (AI) are introduced into their environment. These AI “tech bots” are capable of reading human facial expressions and can identify when a veteran is feeling particularly stressed, isolated, angry, or depressed. The robot can upload the information to the veteran’s caregivers thus alerting them to the need for human intervention. Wearable sensors can also alert a caregiver or medical professional when vital signs are outside of a normal, healthy range.

The VA will provide a payment to disabled veterans toward the purchase of a car or other transportation and additionally will pay for adaptive equipment, repair, reinstallation or replacement of necessary equipment due to disability. If a veteran has lost the use of at least one foot, hand, or has a permanent impairment to their vision or severe burn injuries or immobile joints that their limit mobility, the VA will help to fund the adaptation of the vehicle to make it fully operational to the veteran.

While the latest technology brings benefits to all seniors opting to age in place, the veteran community is especially helped. Many veterans would like the luxury of aging without combat or noncombat injury so inherent to military service. Some of the aging in place obstacles they must overcome are extreme, commensurate with the injuries (psychological and physical) they have endured. Navigating the benefits that are available to a senior veteran is complicated if you are not well versed in the process. Getting enrolled in the correct program and receiving benefits can also be a lengthy process, so it is best to seek help before wasting valuable time.

If you have questions or would like to discuss your particular situation, please don’t hesitate to contact us.

Estate Planning, Elder Law, What’s the Difference?

Estate Planning, Elder Law, What’s the Difference?

The short answer: Both share similar concerns. The longer answer? The differences make all the difference.

The Concerns are Similar

No matter what age we’re in, life can deliver some hard knocks. Hope for the best, but plan for the worst. We can get into accidents, especially when we’re young and under the impression that we’ll live forever. Whom would we like to be there for us if we can’t speak for ourselves? If we can’t pay the bills? Decide about our health care?

Both estate planning and elder law attorneys help you choose people you trust to stand in your shoes when you can’t speak for yourself.

As adults, we start families and assemble worldly goods. If we’re thinking realistically, we want to make sure our families are taken care of and who gets our property if the worst happens to us.

Both estate planning and elder law attorneys help you with those questions. Both kinds of attorneys also know how to protect your estate from tax burdens and to avoid the expense and delay of court proceedings.

The Differences Make All the Difference

Elder law expertise becomes crucial when we get older. We’re living longer, healthier lives – but nobody knows when we, or those whom we love, will get too sick to make decisions or to live independently.

It’s understandable, but not wise, to postpone thinking about these things. Delay or denial can mean that entire savings get wiped out paying for nursing homes. Misconceptions about government benefits can forfeit eligibility for them. If you want to retire from your own business, do you have a plan for a smooth and profitable transition? What quality of life can you protect? What housing arrangements can be made? What is the wisest allocation of financial resources to protect against as many foreseeable contingencies as possible?

This is where we elder law attorneys come into our own. We can help you face these difficult questions with your and your families’ best interests at heart. What we know can go far to spare you the distress and anxiety if you were caught unprepared. We know how Medicaid, Medicare, and Social Security work. We can help you manage retirement income benefits. We can steer you to financial arrangements necessary if you or yours need long-term nursing care.

These are difficult, complicated questions that require particular knowledge to answer. We elder law attorneys have studied long and hard for that knowledge. We have learned how to help you plan to enjoy the life you have, plan for when life becomes harder with age, and have something left over for your legacy.

Estate planning is only the beginning, contact our office to get started.

 

Leaving Well: A Step-by-Step Process

Contemplating our own death is one of the hardest challenges we will ever have to face. Yet, if we want our dying to be meaningful and merciful, it is imperative that we think about it while we still can. Most of us want to die at home, in a familiar and peaceful setting surrounded by loved ones. We would much rather not spend our last moments in an emergency room or ICU, with strangers futilely pounding on our chests and our families relegated to the waiting room.

With those two alternatives in mind, we need to do all we can to keep control, as much as possible, of decisions that need to be made long before our final moments. We need to think carefully, well in advance, about what makes life worth living, and where pain and limitation have so eroded that quality of life that we would prefer not to go there.

These are notoriously difficult questions, but it is vital to address them anyway. For example, Terri Schiavo spent nearly half her young life unconscious in a condition known as a “persistent vegetative state,” being kept alive by a feeding tube. Her husband and friends claimed that before her severe brain injury, she said that she would not want her life sustained by machines. Unfortunately, she never put that wish in writing. On the other side, her devout family and right-to-life supporters insisted that she be kept alive despite her dire condition. After protracted litigation, Ms. Schiavo’s husband prevailed, the feeding tube was withdrawn, and, fifteen years after she was injured and never having regained consciousness, she was finally allowed to die.

Since her passing, the law has evolved nationwide to encourage us all to document final wishes, to avoid the anguish and uncertainty of Ms. Schiavo’s situation. There are a number of documents available in your state for that purpose. The umbrella term for these is “advance health-care directives.”

It’s our job as lawyers to help you sort through the various directives needed to express your wishes. Here is a step-by-step guide to begin the conversation about final wishes, and to understand which document does what when.

  1. If you are over the age of 18, appoint a health-care agent to speak for you when you can’t.

Decide who, among those who know you well, is best suited to take on this responsibility. That person must possess good communication skills, remain calm in difficult situations, and be able to deal flexibly with complexity that might arise in reconciling your wishes with available medical options. Depending on which state you live in, your agent can also be called a “health care proxy.”

Sit down with that person and discuss your wishes in various scenarios. This is not an easy conversation to have, but there are guides available to help you. Visit “The Conversation”

https://theconversationproject.org/

and download the starter kit.

http://theconversationproject.org/wp-content/uploads/2015/09/TCP_StarterKit_Final.pdf

  1. Health Care Power of Attorney (HCPOA)

Once you have had that conversation, visit your lawyer to name your agent formally  in an HCPOA document. HCPOA conveys legal authority on your agent or proxy to express your health-care decisions when you are unable to.

  1. HIPAA authorization

Your agent or proxy will also need access to your otherwise-private medical information. This is best done by a standardized document that complies with the federal Health Insurance Portability and Accountability Act (HIPAA). Without this authorization, your agent will be unable to obtain the medical information necessary to exercise the authority you want him or her to have.

Now armed with your agent and the HCPOA and HIPAA documents, you will know that if you were to meet with an accident or lose consciousness, you have chosen and empowered an advocate to speak for you. You should review and update these documents every five years or so.

The next three documents are important at the end of life. All these documents should stipulate that you desire comfort care, to keep you clean and as pain-free as possible. Remember, though, that you must create these documents while you are still able to know and communicate your wishes, so it’s best to do the next two documents at the same time that you do your HCPOA and HIPAA.

  1. Living Will (also known as Physician’s Directive)

This document is for use when you are not enjoying quality of life. Either death is imminent; you are in a persistent vegetative state; or you are permanently unconscious, permanently confused, or unable to care for yourself. If you have no awareness of others; can’t remember or understand or express yourself; or are unable to move, bathe, or dress yourself, it’s advisable to have expressed, in advance, the kind of treatment you want to receive or not receive.

A living will expresses your choice as to whether you do, or do not, want artificial measures that will merely prolong your life but not improve it. Those measures, among others, may include CPR if your heart stops, or breathing or feeding tubes, or repeated courses of antibiotics or chemotherapy.

You may also require physicians, and not your agent, to be the ones to decide whether to cease life-prolonging procedures as you would like. This decision will relieve your agent from the heavy responsibility of making that irreversible choice.

Living wills are legal in almost every state. Ask your lawyer. Don’t make this kind of document yourself. Otherwise you risk that the document may be misinterpreted, with drastic consequences.

  1. Specialized Directives

Medical decision-making varies depending on specific health conditions, so specific directives may be tailor-made for those conditions. For example, people suffering from advanced dementia benefit from a directive, in addition to the HCPOA or living will, specifically requesting that hand-feeding be ceased when the person can no longer speak, recognize loved ones, or move purposefully. Otherwise, caregivers are obligated to cajole or demand that the patient be fed by hand, taking advantage of a primitive reflex to open the mouth. This risks that the person may inhale the mush instead of swallowing it, in some cases causing pneumonia.

For this kind of condition, ask your lawyer to prepare a specific directive tailored for advanced dementia, using the directives created by

End of Life Washington or End of Life Choices New York.

If, however, you suffer from a neurological illness like Lou Gehrig’s disease (ALS) or advanced Parkinson’s, even though most of us would decline mechanical treatments, those same treatments may be important aids to preserve quality of life for people with those conditions.

Again, remember that you must create these documents while you still have the capacity to communicate your wishes. Living wills should be reviewed every six months, because wishes can change depending on the progress of the illness.

  1. POLST or MOLST

This is a brightly colored, short-form document that is primarily intended for emergency responders when the patient is frail and is likely to die within a year. It is designed to be immediately recognizable by hospitals and EMS personnel, to express that when the patient is unresponsive, cardio-pulmonary resuscitation (CPR) and other aggressive treatments are desired or not desired (DNR).

This document should be filled out in consultation with the patient’s physician. The acronyms stand for “physicians’ orders for life-sustaining treatment” or “medical orders for life-sustaining treatment.”  Many states provide for this kind of document.

  1. MAKE YOUR DOCUMENTS KNOWN

When it comes time to use your documents, they must be readily available. Give a copy of them to your agent or proxy, make sure they are included in your medical records, and, if you are in need of the POLST or MOLST, post it beside your bed or on your fridge where EMT knows to look for it. If your documents can’t be found, or if your agent or family don’t understand them or ignore them, you will have spent your time, effort, and money in vain.

But if all goes according to your wishes, you will have done your best to create a good death, one that is as meaningful as possible for all concerned. If we can assist in helping you with any of the documents above, we would be honored to do so.

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