I Take Care of My Mother. Can I Legally Get Paid for That?

As the number of family members providing care for aging parents increases, the solutions to find help with loss of income because of time off from employment for caregiving has become a major concern for many. The demands on both the time and energy needed to provide the needed care can make it impossible to maintain both a full time job with full time caregiving.

Angela is a registered nurse. Her mother, Renee, has been experiencing a gradual decline in her health due to her Alzheimer’s and stroke and recently moved in with Angela. Angela is taking more and more time off from work to give Renee the care she needs. Sometimes she misses out on important overtime that her household finances depend on. Angela started paying herself out of her mother’s account for the care that she gives Renee. She pays herself some weeks, and doesn’t on others, even though she is providing the same care.

It is understandable that Angela would want to be paid for the care she is giving her mother, especially when it is interfering with her current job. Also if it wasn’t for this care, Renee would be in a nursing home. But, Angela must be sure to go about getting paid correctly.

The National Family Caregiver Support Program was created by the federal government to support family caregivers. While reviewing this site, Angela found out where she can get respite care for Renee, so she can take a much needed vacation with her husband. She also discovered how she may get paid, without feeling bad about her mother’s dwindling funds, and how these payments can continue after her mother runs out of money.

Often overlooked, the Veteran’s Aid and Attendance pension benefit is a great source of money to pay family caregivers to provide care at home. This money is available to veterans who served during a period of war. Pension money is also available to the widows of these veterans. This benefit, under the right circumstances, can provide up to $1,949 a month in additional income to pay family members to provide care at home. Luckily, Angela’s late husband was a WWII veteran and she qualifies for aid. However, she must have a professionally drafted caregiver contract in place, get a medical evaluation, meet income and asset qualifications, and have proof of medical expenses and care needed.  

Alternatively, or sometimes in addition to, a long term care insurance policy covers home care and payment to the care giver from this source could be arranged. Some policies require the care provider to be through a licensed home care agency, but others will pay for individual aides certified as such. This would require some training by the family member to become certified, unless they had a nursing background, like Angela. Renee did not have a long term care insurance policy in place. However, there are policies that pay a daily benefit amount to the insured to use as they want to pay for their care.

In some cases the elder has the funds to pay for their own care. If a family member is giving care it is very important that a professionally drafted caregiver contract be in place. Without one, any payments could disqualify the elder from certain MassHealth/Medicaid long-term care payments. Lump sum payments for care and/or retroactive payments are never a good idea.

A caregiver contract prepared by an elder law attorney like Attorney Kristina R. Vickstrom, will be a signed and dated agreement will outline the services provided as well as the amount of pay for these services. The contract will eliminate questions about what is expected from both parent and caregiver as well as providing a legitimate contract and a clear and consistent payment record of services to qualify for MassHealth/Medicaid. The contact will be treated as an employer/employee relationship and payroll records must be kept with taxes paid. Retroactive payments for care-giving are almost never allowed when applying for MassHealth/Medicaid.

The family member providing such care, like Angela, can not only save their loved one from needing nursing home services outside of the home, but also could protect assets in the event that long-term care is needed in the future. Please contact Vickstrom Law to set up a consultation if you are interested in learning more about the right way to get paid to take care of your loved one.

Upcoming Long-term Care Planning Presentation at Dodge Park Rest Home

Fall Prevention in the Aging Population

From time to time I like to feature local experts with tips and advice for improving senior’s lives. This week’s blog is written by my colleague, Dr. Don Pelto of Central Massachusetts Podiatry. Dr. Pelto specializes in many foot ailments and writes about how you can be proactive by avoiding falls among elders.

Falls are a  major causes of injury in elderly people.  Hip fractures account for approximately 25 percent of injury deaths among those 65+, and 34 percent of injury deaths among those 85+.

Most falls happen in or around your house and can be life threatening.  For example, Mary Smith was seen in my office for a footcare visit.  I asked her, “Mary have you fallen recently?”  She said, “Well in fact I was walking around my house and was only going a short distance and not using my walker and I fell and hurt my hand but thankfully nothing was broken.” Mary said that she lost her balance quite frequently and that she had nearly fallen a number of times.

Mary’s situation is very common. Many times a fall can cause other problems that lead to problems that can be fatal over time.  There are many devices such as canes and walkers that can help the elderly live safer at home.  However, a new fall-prevention device has been developed that can be worn in regular shoes has been shown to decrease falls by 30-60 percent in the elderly.  It is typically covered by Medicare and Medicaid and is light weight.

If you would like to learn more about these braces visit www.fallpreventionbrace.com or if you would like to make an appointment to see a physician regarding obtaining these braces please contact Dr. Donald Pelto at Central Massachusetts Podiatry at 508.757.4003 or www.drpelto.com.  Dr. Pelto is a podiatrist working in Worcester, Massachusetts.

The Difference Between Alzheimer’s Disease and Dementia

Many people use the terms Alzheimer’s disease and dementia interchangeably, but they have very different meanings. Although dementia is a group of symptoms that include memory loss, the term itself doesn’t explain what is causing the symptoms. Alzheimer’s disease is the leading cause of dementia, but there are many other causes.

Dementia is a general term for memory loss that is severe enough to interfere with daily life. The signs of dementia may include forgetfulness, difficulty making plans, thinking ahead, or using language, as well as changing character traits, among other symptoms. Alzheimer’s disease accounts for 50 to 80 percent of dementia cases according to the Alzheimer’s Association, but there are other causes, including vascular dementia, Lewy body dementia, frontotemporal dementia, and Wernicke-Korsakoff syndrome. For a list of the different causes of dementia, click here. Some causes of dementia are treatable, so it is important to understand the cause.

Alzheimer’s disease is a partially hereditary disease that causes a loss of brain cells. The symptoms start out mild but grow progressively worse over time. There is no cure, but there are medications that can treat the symptoms and slow the disease’s progress. An early symptom of Alzheimer’s is difficulty learning new information. It can then progress to more severe symptoms such as forgetting names and places, disorientation, mood and behavior changes, and an inability to relate to others. Eventually, it can lead to the inability to talk, walk, or eat. Check out the Alzheimer’s Association for more information.

Dementia, whether caused by Alzheimer’s disease or some other underlying disease, is not a normal part of aging. If someone you love is exhibiting signs of dementia, they should get immediate medical attention to understand what is causing it.

This blog originally appeared in a post from Elder Law Answers.

EAEDC Financial Planning for Rest Home Care in Massachusetts

The limited number of subsidized Assisted Living slots has made Rest Homes a viable alternative for many physically and mentally impaired elders in Massachusetts. The care in a Rest Home is greater than that of an Assisted Living facility, but not as encompassing as traditional Nursing Home care. Although Rest Homes are less expensive than Nursing Home care, they are not a long term solution for many families. If financial planning begins early, Emergency Aid to Elders, Disabled and Children (EAEDC) may be an alternative to help you or a loved one cover the costs of continued Rest Home care.

After he experienced frequent debilitating strokes, Maura decided to move her father, Joe, from his condominium in Newton to a local Rest Home less than ten minutes away from her house in Worcester. At a cost of $7,500 per month, Maura figures that Joe’s assets of $275,000 will finance just three years of Rest Home care. She knows that Rest Homes do not accept MassHealth for payment, like her mother-in-law is currently taking advantage of in a Nursing Home. Joe doesn’t need that type of care yet and Maura would like to keep him as active and independent as possible. The director of the Rest Home mentioned the EAEDC program and how it may assist Maura and Joe in financing his care in the long run. He recommend that they speak with an Elder Law attorney familiar with the program. Maura learned with the right financial planning Joe can be approved for EAEDC payments to the Rest Home and some of his hard-earned assets can be kept within the family.

A state-funded welfare program administered by the Massachusetts Department of Transitional Assistance, to qualify for EAEDC, you must be a senior aged sixty-five or older, with very little resources, not qualifying for other cash assistance programs such as Supplemental Security Income (SSI) or Veteran’s Services Benefits (VSB). The maximum value of your money and property cannot exceed $250, including bank accounts, IRAs, stocks, bonds, cash, and surrender value of life insurance policies and cars. To reach this miniscule amount, like Joe, one often has the choice of either exhausting available resources in effort to apply for EAEDC and similar state-funded programs, or transferring assets to his or her family members to render eligibility for state funding.

One significant advantage of the EAEDC program concerns its “look-back” period on the transfer of assets. If Joe were to transfer his assets to Maura for less than fair market value within the twelve months prior to the date of application for EAEDC, he would be subject to a period of ineligibility. In comparison with MassHealth’s five year “look-back” period, EAEDC appears much more generous. Additionally, applicants for EAEDC lose the right to retain individual health insurance coverage, but become eligible for MassHealth coverage (even if a person’s income exceeds the limits normally established for MassHealth).

However, one must be careful not to disqualify themselves for future MassHealth coverage of the Nursing Home stay due to sloppy EAEDC planning. Sometimes a person can deteriorate and no longer be appropriate to continue in a Rest Home. Both programs qualifications vary and are very specific. If you or a loved one plans on entering a Rest Home in the near future but want to keep hard-earned assets within the family, your best bet would be to undertake advanced financial planning with an Elder Law attorney, like Kristina Vickstrom, who is experienced in both the MassHealth and the EAEDC programs.

Grandparents Raising Grandchildren- Legal Options and Financial Support

With the decline of the traditional nuclear family, individuals over 50 are increasingly vested with responsibility for the caretaking of young children and adolescents. Financial problems are the primary cause of seniors having to assume more “traditional” child-rearing duties. Whether due to a divorce, military service, substance abuse, mental illness or other secondary issues, some adults may be unable or simply unwilling to be good parents themselves.

After suffering ten years of domestic abuse at the hands of her husband, Jennifer finally filed for divorce and moved herself and her daughter in with her parents, Gerry and Donna Daly. Although the relocation was supposed to be temporary, Jennifer has exhausted her bank accounts, refuses to obtain employment, and has sunk into a deep depression. Gerry and Donna are proud, retired grandparents who want to ensure that their grandchild is raised with love, discipline, and opportunity. They have been expensing the household’s grocery bills and clothing for the child, as well as toting her from play-dates to extracurricular activities. The Dalys’ other children have begun to voice concern over their parents’ spending, noting that their income is supposed to sufficiently cover a two-person household and not be stretched to support a four person family. While Gerry and Donna understand their concern, they don’t believe in asking Jennifer and her daughter to leave and have the utmost confidence that Jennifer will get back on her feet. What are their legal and financial options?

Many times, the child-rearing duties that grandparents assume will cause a real strain on seniors’ budgets. Child care costs can grow exponentially dependent on the length of time a grandparent will be asked to assist in raising his or her grandchild. Given this responsibility, these seniors might consider obtaining legal authority to make decisions for that child – on important issues such as healthcare and schooling – and financial assistance from the State.

In Massachusetts alone, 67,781 children reside in grandparent-headed households. Although the Daly’s granddaughter is physically living in their home and they are raising her, Gerry and Donna do not have any legal rights or authority to make decisions on behalf of the children. Jennifer could sign a form giving her parents ‘caregiver authorization.’  This is a caretaking option provided by the Massachusetts Uniform Probate code and allows parents to authorize a designated caregiver to exercise “concurrent parental rights” on healthcare and schooling matters. Provided that the caregiver lives with the child, the authorization is valid for two years and does not require court approval. Caregiver authorization is an alternative to filing for Guardianship of a Minor, a court decree effectively suspending the rights of the parents and transferring them to a guardian entrusted with caretaking responsibility. Depending on Jennifer’s state, this may be necessary for the Dalys.

If you are on a fixed income and unable to get help from a child’s parents, the child may be eligible for payments from Massachusetts’ Transitional Aid to Families with Dependent Children and medical coverage through MassHealth. For further information on assistance through these and similar programs, consider reviewing the Massachusetts “Resource Guide for Grandparents Raising their Children.”

While it may be your desire to become legally and financially responsible for your grandchildren, you are not required to as a matter of law. It is ultimately up to the Commonwealth to assign custody to a suitable individual. However, if circumstances have placed your grandchildren in your home, it is helpful and oftentimes necessary to review your present legal options and to adapt an existing estate plan to ensure that the unique challenges of caring for grandchildren are addressed. Contact Vickstrom Law to your situation and get informed on your options.

What Really Happens to Your Estate if You Die Without a Will in Massachusetts?

Dying without a Will is called dying “intestate”. What this means is that your intentions as to who inherits your assets, who administers your estate, and who acts as guardians for any young children are determined by the Commonwealth of Massachusetts. It is often said that if you don’t have an estate plan, the Commonwealth has one for you. And as of January 2^nd, 2012, the Commonwealth has an updated plan for you! That’s when the last phase of the Massachusetts Uniform Probate Code (MUPC) takes effect.

It’s estimated that nearly 65% of Americans don’t have a Will. Fred is a healthy, vibrant sixty-five year old man. He exercises three times and week, and has made a conscious effort to eat well since his recent diagnosis of diabetes. After speaking with many close friends, Lenore, Fred’s wife, insists that they both create Wills. Fred insists that he is perfectly healthy, wishing to leave the issue of estate planning until he experiences further health problems. What if Fred was to die without a Will?

If Fred dies in 2012, or later, without creating a Will or using some legal method to transfer his assets, Massachusetts law, specifically, the rules of intestacy, determine what happen to your property. After payment of debts, expenses, administration and funeral costs, your property will be distributed to your heirs according to a predetermined legal formula. The problem is that the formula that the Commonwealth uses may not end up being how you would like your estate divided. If no relatives can found to inherit your assets, they are taken by the State.

Intestacy distribution, under the MUPC, specifies that if Fred dies leaving a spouse with no children and his parents are also deceased, his spouse receives everything. But, the same scenario if Fred’s father is still alive at his passing, Fred’s wife and father will each inherit from Fred’s estate.

What if Fred passed with a spouse and minor children? Then his spouse would inherit everything, regardless of whether his parents were still living. However, if one of his children was from a previous relationship, the current spouse and ALL of Fred’s children are heirs together and inherit a portion of his estate.

Despite the changes under the MUPC, Massachusetts Wills still have a spousal elective share clause, which means you can’t disinherit your spouse in your Will. In most cases the surviving spouse can elect to get the first $100,000 or $200,000 of the estate, plus a portion of the remaining property, instead of what their spouse left in their Will.

The rules of intestacy may appear confusing and difficult to apply given your unique situation. It is always best to determine how you would like your assets to pass through a properly executed Last Will & Testament, or even a Trust. In this way, you can ensure that family members you are not close with do not end up inheriting through your estate. You may also provide for step-children in the case of blended families.

The best way to truly ensure that your family is protected and that your estate is distributed the way you want it is to consult with a knowledgeable attorney’s office, like Vickstrom Law, who specializes in Estate Planning.

Marrying Later in Life: Do I Need a Prenup?

Welcome to the new singles scene. With the average life expectancy in the United States about 78 years old, people are living longer and healthier lives than ever before and more and more seniors are falling in love. However, what can be a thrilling and romantic time for an older couple can also be an anxious time for family members that have expectations regarding inheritance. It is worth noting that once married, a spouse will automatically inherit, at the very least, a portion of deceased partner’s estate, unless measures are taken to avoid this.

After her husband of 49 years passed away, Louise never thought she would remarry. After six months she met Frank, a man fifteen years younger, who occasionally accompanied Louise to dinner and church. About a year and a half after her husband died, Louise called her daughter, Emily, saying she’d been scoping out wedding venues. Prior to the wedding, Emily pushed that the couple sign a prenuptial agreement. Her mother had considerable assets and she worried that Frank might be after her money. Louise brought the concerns to Frank, who balked at the idea, declaring that their marriage would endure forever. After some discussion, Louise became adamant, wanting to preserve some assets and family property for her children as a condition of the marriage. Ultimately, the prenup was a deal-breaker; Frank was either interested in little more than her wealth or was too hurt to come to turns with the reality of their relationship.

Without a prenup in place, your new spouse could invalidate your previously existing estate plan. For example, suppose Louise intended her home to pass to Emily. With improper estate planning and no prenup, Frank could inherit her house and pass it on to his heirs when he dies. Disinheriting her children would probably not have been Louse’s intention.

One common perception of a prenup is that the agreement entails fear that a marriage will fail. Why draft a prenup if two individuals love and trust one another? Frank may have had these concerns. While a premarital agreement might feel unsatisfying, over one-quarter of senior marriages do end in divorce. With accumulated resources and descendants, a prenup can ensure that a spouse’s separate assets will pass to his or her own loved ones upon marriage dissolution. Though it may not seem fitting with the romance of a wedding, think of a prenup as an open and honest disclosure of both parties’ assets and agreement as to their distribution.

A prenup is not an estate-planning tool and may not take precedence over a will or trust. The married later in life couple must also be sure to implement a solid estate plan to ensure their joint wishes are not undermined by the surviving spouse. To ensure that your prenuptial agreement is valid, it must be in writing, signed voluntarily, read and understood by both parties, disclosures must be open and honest, and the agreement must be fair and not contain illegal provisions. If you have already remarried and did not negotiate a prenuptial agreement, these issues may be resolved with a post-nuptial agreement and through proper estate planning.

Contact Vickstrom Law for more information concerning prenuptial or postnuptial agreements as well as proper estate planning for later in life marriages.

Protecting the Family Cottage from a Medicaid (MassHealth) Spend Down through an Irrevocable Trust

An irrevocable trust is an excellent tool when preplanning for Medicaid benefits.  Anything that is put into the irrevocable trust is protected from a Medicaid spend-down if five years pass from the date of the transfer.

For example, Alice Smith, a 77-year-old widow, wants to protect her family cottage from potential long-term care nursing home bills and preserve it for the benefit of her four children and their immediate families.  To do so she would need to establish an irrevocable trust, fund it with the cottage property, and have five years pass from the date of the transfer.  Additionally, to ensure her children have sufficient funds to maintain the family cottage, Alice also simultaneously transferred $250,000 of cash assets into the trust.  Finally, in order to bullet-proof the plan in the event of an accident, Alice purchased a traditional long-term care insurance policy which will provide her with five years worth of long-term care benefits, including home health, assisted living, and nursing home care.  The long-term care insurance policy also offered a full return of premium rider in the event that she passed away without using any of the coverage.  After such an event, the annual premiums would be refunded to her revocable living trust.

With the above plan in place, Alice was confident that her wish to have the family cottage remain in the family for many years to come would be long lasting.  Notwithstanding the above, Alice understood that when the maintenance funds ran out that a financial problem may soon develop.  However, to avoid a point of impasse among her children, Alice designed the trust so that if a financial problem persisted for more than 90 days, the trustee was directed to sell the property, giving each child an equal share of the sale proceeds.

This week’s blog originally appeared in a blog from Kraus Financial Services and can be viewed here.

When Should I Update My Estate Plan?

An estate plan that was suitable a few years ago may no longer be suitable today. One should look to update their estate planning every three to five years or even sooner if you experience a dramatic change in life circumstances.

John and Laura had estate plans created shortly after their marriage in 2002. After learning of Laura’s infidelity, John undertook divorce proceedings but failed to update his estate plan to remove Laura. For the past five years John has had a serious girlfriend. Last week John was diagnosed with prostate cancer and wants to ensure his girlfriend gets his estate in the event of his death. Laura has an adult special needs son, Bill, and John would like some of the assets to go to Bill for his care. He feels that his family is aware of such intentions and that hiring an attorney is an unnecessary cost. Is John right?

A change in your marital status should be followed by a change in your estate plan. It is important to note that in Massachusetts, marriage voids a will executed prior to the marriage, unless the will appears as though it was made in contemplation of marriage. Divorce may also necessitate modifying an existing estate plan to disinherit an ex-spouse. Contrary to conventional wisdom, just because you’re divorced does not automatically remove your ex-spouse as a beneficiary of an account such as an IRA. Consider the revision or replacement of your estate plan as a part of the divorce process, which will look at all the pieces of your estate to make sure you are not overlooking something.

If your named executors, beneficiaries under your will/trust, or other beneficiaries are no longer in your life, you definitely want to update your documents to reflect a new beneficiary or executor. You may also want to include a new child, grandchild, niece or nephew who has been born after your last will was signed. John should make sure that his ex-wife is removed from all of his assets.

If a beneficiary becomes disabled, or has special needs, you may wish to update your estate plan to accommodate the increased needs of that individual by creating a Special Needs Trust (SNT). A SNT will allow assets to be protected for the disabled beneficiary without disqualifying him or her from receiving government benefits when you pass. A SNT within John’s estate plan would ensure that any funds left to Bill did not effect his benefits.

You might not be aware of all of the changes in estate-planning law, but new cases or statutes might have an impact on the structure of your individual estate plan. Have your attorney revisit your estate plan every few years to ensure its compliance with the current law. For example, John doesn’t know that the Power of Attorney statute changed in Massachusetts recently. He should ensure that his document complies with the new law.

Documents that need to be included in an estate plan and the manner of signature may vary on a state-by-state basis. Some states require more written witnesses and others do not recognize hand-written wills. Upon relocation to another state, review your estate-planning documents to ensure their validity in your new state. This is another example of why you should not look to make your estate plan yourself or use pre-printed forms. John’s original Will was drafted in Rhode Island. He’ll need a Massachusetts document now that he lives here and is looking to make changes anyway since his divorce.

Your estate plan is not something that should be executed once and placed in a safety deposit box. Make sure that you review it at least every few years and whenever your life changes OR the life of your beneficiary changes. If your life has changed significantly since you last did your estate planning, or it’s been more than five years since you executed your documents, be sure to consult with a qualified estate planning attorney, like Attorney Kristina Vickstrom, that can perform an estate plan review to let you know your plan is all set for a few more years or recommend any proper updates and changes.