After attempting to cope with his mother’s diagnosis of dementia for several months, Joe has finally decided to research local nursing homes for his mother. However, he is concerned about the cost while protecting his mother’s multiple properties, which have been in the family for generations. During a vist, Lindsay, a social worker from the facility, reached out to Joe, offering to complete a MassHealth application for his mother at no-cost. While Joe likes the concept of this free service, he can’t help but wonder if there is a catch involved.

Employed by the nursing home, social workers and other nursing home advocates focus on the rights of the nursing home and not the resident. The nursing home has a vested interest in keeping someone on “private-pay” for as long as possible because their private pay-rates are much higher than the amount received in MassHealth/Medicaid reimbursement. This means more out-of-pocket costs for residents than may be necessary.

Further, even if nursing home advocates do have the best of intentions, the MassHealth/Medicaid process is riddled with complex rules and regulations that are difficult to navigate for those not educated in the eligibility requirements and advantageous planning opportunities available under MassHealth/Medicaid. For instance, an individual encouraged to apply too soon might be ineligible for an extended time period and have to pay privately for a longer duration. Alternatively, the “advocate” may not inform the family that they can pre-pay for funeral expenses as part of a spend down, thereby reducing the burden on family members when the applicant passes.

Individuals that enlist family members to fill out their MassHealth applications or file themselves may face similar problems. Unfamiliar with eligibility requirements and liable to miss prime planning opportunities, these individuals are likely to encounter harsh penalties or confusion when faced with the application process, as well as income and asset verifications. Once they receive their denial notice in the mail, it will be much more expensive to get an Elder Law attorney involved at that point. Additionally there are strict time periods that must be adhered to in order to have any change at being sucessful in a MassHealth/Medicaid appeal.

Nursing home advocates and family members, although the cheapest solution up front, do not have the requisite knowledge, skills, or ability to compose trusts, devise appropriate estate plans, and represent you in an appeal setting if the need should arise. Rectifying the mistakes of an advocate or self-handled application may be more costly than a properly executed plan formulated a skilled elder law attorney. By hiring an elder law attorney to guide the MassHealth application process, you will ensure that your savings, your spousal support, and your family’s inheritance will not be jeopardized by lost opportunities in a last minute planning strategy.

Hiring a lawyer to handle your MassHealth application is a necessary investment. Elder law attorneys can save clients and their family members an amount greater than the cost of their legal services. If you are interested in learning more about the MassHealth application process or long-term care planning, contact Vickstrom Law today!

Jo-Ann’s ninety year-old father, Ed, recently suffered a massive stroke. After spending four days in the hospital, Ed was transferred to the Odd Fellows Home in Worcester, Massachusetts for round the clock skilled care. Medicare covered the entirety of Ed’s expenses for the first 20 days of his stay, and Ed fronted a $95 copayment for days 21-100. It is now day 101. Medicare refuses to pay for Ed’s care because the program contends coverage has ended and that Ed now must meet his skilled care expenses from another source.  Ed has been primarily dependent on monthly Social Security checks after running through his savings a few years ago. Jo-Ann is a single mother of four children who fears that she won’t be able to keep her father in a nursing home due to her financial inabilities and his exhausted savings. She thought that since Ed paid taxes his whole life it would have guaranteed him government-funded nursing home care. What are Ed’s options?

It is easy to confuse Medicare with Medicaid. Medicare is a federal health insurance program. Anyone who has paid their taxes and meets specific qualifications (is over the age of 65, or who has been blind or disabled for the past two years) is entitled to Medicare coverage. Hospitalization, immunizations, medical equipment, and physician visits are covered by Medicare, while deductibles and co-pays are often covered by a form of supplemental policy. Medicare applies regardless of financial need but will not pay for nursing home care except in extremely limited circumstances, and then only for small durations.

Ed might benefit from applying for Medicaid, or MassHealth in Massachusetts. A joint federal and state program for individuals with certain medical needs who are financially needy, Medicaid/MassHealth is often the chief financier for nursing home care. An applicant may have no more than $2000 in countable assets (cash, savings, mutual funds, retirement accounts, houses) before requesting Medicaid/MassHealth. To achieve Medicaid/MassHealth payouts, many individuals will seek to transfer their assets to loved ones to demonstrate financial need. It is important to note that the transfer of assets for less than their fair market value will result in a corresponding ineligibility period for Medicaid/MassHealth coverage of nursing home care.

The average cost of a nursing home in Massachusetts is an astounding $11,000 per month. If you or a loved one has exhausted all means of paying for skilled care, it is important to contact an Elder Law attorney to discuss your options. After recommending Medicaid/MassHealth, an Elder Law attorney may suggest ways to set aside funds and assets for your family without jeopardizing the patient’s medical care and “spend down” ideas which benefit the patient.

Medicaid/MassHealth rules are complex and confusing. Further, nothing in this area is concrete or insulated from legal or policy change. Vickstrom Law can help explain the interrelationship between Medicaid/MassHealth and nursing homes and can assist with protecting and preserving assets for a spouse or other family members.

Most everyone would say that they want to be independent and remain in their own homes as long as possible. This sense of autonomy can be kept in place longer than ever before due to medical advances, assistive devices, and in-home care provided by family members and private caretakers. However, what happens when an elder can no longer remain safely in their home and an adult child is trying to get them the help they need?

Esther is 89 years old. She has lived alone since the death of her husband 23 years ago. She gave up driving two years ago, but is regularly visited by her children and grandchildren, who take care of errands or drive her to handle things herself. Lately, she has been rather unsteady on her feet. Additionally, she has been very forgetful and once left the stove on all night. She is also having trouble remembering to take her medications. There were so many her daughter, Susan, sorts them every week into a pill box. Esther still forgets to take them and sometimes actually doubles up on doses. Susan can see its time for more help but Esther is adamant about not having strangers in the house and doesn’t want to end up in “one of those places…”

Many times, elders resent their adult children trying to help them.  In the elderly parents mind, they are still independent and completely able to handle their own affairs.  In the above example, Esther does not appreciate her daughter’s suggestion that they bring in some private home care, or that her mother visit an assisted living facility or rest home. She feels her children are being too pushy, and trying to take control.

But on the other side, Susan feels that Esther isn’t thinking clearly anymore. She is extremely hurt by her mother’s attitude and reaction. After all, Susan is just trying to help. 

The parent/child roles have been reversed, except unlike with young children, the adult child does not have the automatic right to make decisions for the elderly parent. Unless the child seeks to declare the parent incapacitated through a court ordered Guardianship or Conservatorship, or has the parent’s Health Care Proxy and/or Durable Power of Attorney activated, the child has to realize that in the eyes of the law, the parent may make their own decisions. And, unfortunately, people are allowed to make bad decisions.  However, it is important that the adult child watch the situation carefully and not get frustrated and leave the parent to their own devices.  Assisting does not mean taking over against their parent’s will. 

Too many children have simply given up when their “help” is not accepted. If one finds themselves in that situation, they can contact our office for assistance and suggestions for getting through to the parent, discussing the possible need for Guardianship, ensuring that the elder’s estate planning documents are in order, scheduling a medical evaluation, and/or perhaps referral to a geriatric care manager where appropriate.

The elderly years can be as challenging as the terrible twos, terrible terrible teens, and even the terrible twenties.  Elderly parents must be respected by the adult child who is trying to help, even if the parent/child roles have truly been reversed.

The Massachusetts legislature has finally recognized the strong bond that exists between man and animal by passing legislation that allows a pet owner to establish a trust fund to provide ongoing care for any animals alive during their lifetime. The Act states simply that “[a] trust for the care of one or more animals . . . is valid.” Prior to this legislation being enacted, an animal owner had to leave funds with a human caretaker, who would then agree to provide care to any animals.

The statute provides that the trust will not terminate until the benefited animal, or the last of several animals, has passed away. This assumes that the trust contains enough funds to continue to exist for that length of time. Thus, it is not enough to merely create a trust. You must also ensure that enough assets will be placed into the trust to provide the desired care. Some people overcome the lack of present funds by purchasing a life insurance policy that will pay into the trust when they pass away. Conversely, if the trust receives an excessive amount of assets, the statute also allows for a reduction of the funds, so long as there will be no substantial impact on the animal.

When creating a pet trust, it is necessary to name a trustee, who will be responsible for managing and investing the funds, as well as making distributions for animal care. Fortunately, failure to name a trustee will not be fatal as the statute provides that the court shall name the trustee in this case. The legislation also provides safeguards by restricting distributions to the trustee, with the exception of trustee fees, costs of administration and any other distribution authorized by the trust. Further, the statute allows for court enforcement of the trust if the trust funds are being misused.

When the last of the animals passes away, or if there is a reduction as indicated above, the funds would first be distributed as directed in the trust. If there is an absence of direction, the funds would be returned to the person who created the trust, if they are still alive. If they are not alive, then the funds would pass pursuant to the residuary clause of their Will. In the absence of a Will, the funds would pass in accordance with the laws of intestacy, which distribute your assets if you pass away without a Will. The best trust would provide for distribution of the balance within its terms.

Another important decision when planning for your pet is determining who will serve as your pet’s caretaker. While the statute does not restrict the trustee from acting as the caretaker, this arrangement is not recommended as it could lead to a lack of oversight with respect to animal care, trust fund management, or both. It is also recommended that you name at least one alternate caretaker, if not several, who would provide care if the originally named caretaker was unable to do so.

To ensure that the plan is carried out as intended, you should also address the following concerns. Remember that your pet will pass through your estate as personal property; therefore, you must leave your pet to the trust in your Will or by assignment prior to your passing. In addition, your plan should clearly describe the animal to avoid “replacement” of the animal by an unscrupulous caregiver who desires to continue receiving payments from the trust. If your animal has specific care requirements, you should be sure to clearly describe those requirements and to specifically authorize any expenditures that might be considered unusual or excessive. Finally, you should be sure to include strict guidelines for euthanasia and to address the final disposition of your animal.

Planning for the ongoing care of your animals has never been easier. If you have a current plan in place for the care of your animals, you should update your plan to take advantage of this new law. If you do not have a plan in place for the care of your animals, there is no time like the present to establish one.

On June 2, 2009, a 93-year-old driver hurt a mother and toddler in a stroller when he drove his car into a Danvers Wal-Mart. He stepped on the gas pedal because he thought he was stepping on the brake.  The next day, a 73-year-old Middleboro driver accidentally drove her minivan into a crowd of people attending a Vietnam War Memorial in Plymouth. As a result, eight people went to the hospital. Read this blog for more information.  In an effort to reduce the number of accidents involving elderly drivers, Massachusetts legislators passed the new Safe Driving Law.

The new Safe Driving Bill is eight pages long but can be reduced to a few major points affecting elderly drivers:

• Drivers can no longer compose, send or read text messages while driving.
• If you’re 75 years old or older, you must renew your drivers license in person at the Registry of Motor Vehicles.
• If you’re 75 years old or older, you have to take a vision test every five years when you renew your license.
• A health care provider or police officer who feels an individual cannot mentally or physically operate a motor vehicle safely can request an evaluation of the person’s ability to possess a license.  Such a request, however, cannot be made solely based on a person’s age.

The law is also designed to remove problem drivers from the road and encourage people to drive more carefully by reducing the number of “surchargeable incidents” (anything that causes insurance premiums to rise, including at-fault accidents, speeding tickets, etc.).  A driver involved in three such incidents in a two year time span faces license suspension.

To answer these questions, ElderLawAnswers asked two experienced Estate Planning and Elder Law attorneys to evaluate three leading online will preparation and estate planning programs: Nolo’s Online Will, BuildaWill, and LegalZoom. Their findings and ElderLawAnswers’ conclusions are presented in a five-page whitepaper that is available for free on ElderLawAnswers website.

The conclusion: “We conclude that while online estate planning could possibly work for people who have little or no property, small savings or investments, and a traditional family tree, the significant remainder of the population should not rest easy using one of these programs and should instead consult with a qualified Estate Planning attorney. In other words, in all but the most commonplace Estate Planning situations (and only an attorney can determine what is “commonplace”), do-it-yourself estate planning programs can be a risky, and often quite costly, substitute for in-person planning with an experienced estate planning attorney.”

I encourage you to read the whitepaper and see for yourself. Common issues with these type of estate plans include oversimplification. For example they do not explain the complexities of naming too many decision makers to serve at the same time, nor do they explain why a minor child or an elder parent may not be a good choice to name as an agent. They often overlook tax laws. Its important to remember that each State’s probate laws and tax laws vary. Further, mixed marriage situations are never a good fit for these programs. Additionally, users may miss powerful opportunities to sheild a child’s inheritance or plan for a special needs child. Finally, there is the issue of liability. Who do you hold accountable if a mistake was made?

In my office alone, I have several consultations per month where I assist clients in backing out of poorly drafted, do-it-yourself estate plans, and into something that makes sense for them and their families. Its very important to remember that there are no one-size-fits-all when it comes to planning one’s estate but that the utmost care should be placed in choosing the right person (Estate Planning or Elder Law Attorney) to help you, and not the right computer program.

In April 2008, the Massachusetts Health Care Quality and Cost Council (MHCQCC) issued its annual report recommending that Massachusetts establish a pilot program to improve communication between patients and clinicians, and other interested parties, regarding end of life treatments. The MHCQCC found that many patients nearing the end of life were unaware of the treatment options available to them, or, if patients had been aware of such treatment options and had discussed them with their doctors previously, nothing was in place to ensure that their preferences were honored. Therefore, the Massachusetts legislature enacted legislation in August 2008 establishing a demonstrative program for the MOLST process in one community in Massachusetts: Worcester. (Yay, Worcester!)

The MOLST form is fairly simple and easy to read; the most difficult part is actually making the decisions and putting them down on paper. The form is only two pages long, and only two sections must be completed in order for the form to be honored. These two sections are Section D (patient information – specifically who is signing the document on behalf of the patient) and Section E (physician information). In   Section D, it is possible for the patient, the patient’s health care proxy, or the patient’s guardian to sign on his or her behalf. If a guardian is signing for the patient, the guardian must ensure that s/he has the legal authority under the guardian appointment to do so. This may require consultation with the patient or guardian’s Elder Law attorney.

If any other section of the form is not filled out, the health care agent is not limited in his or her decisions for life-sustaining treatment for the patient. Sections A, B, C, and F ask the difficult questions regarding resuscitation, intubation and ventilation, hospitalization, respiratory support, dialysis support, and artificial nutrition and hydration. It is critical that you speak with a physician before making these decisions so that you fully understand the meanings of the terms used and the potential consequences. Once these sections are filled out, they must be honored by all health care professions in Massachusetts, where clinically appropriate. The MOLST form is different from a Living Will or another document expressing your “final wishes” because it carries more authority and is more likely to be honored. A Living Will or final wishes document is only used by health care professionals to keep your wishes in mind when making decisions about treatment. While the MOLST form is not currently legally binding, health care professionals are strongly encouraged by the state to honor it.

Finally, Section G simply asks for the contact information of the health care agent. There is also room on the form for other treatment preferences, in which you can more clearly articulate your wishes. There is an expectation that the form will be reviewed throughout the patient’s life so that if his or her preferences change, those preferences will still be honored.

View a sample MOLST form here.

MOLST in Massachusetts from Commonwealth Medicine on Vimeo.

Under the Deficit Reduction Act of 2005, an individual may still be eligible for MassHealth if certain assets were transferred to specific individuals. One of your biggest assets is probably your home. You can transfer title to your home to the following individuals without it being counted and without subjecting you to the 5-year look-back period: (1) your spouse; (2) your child who is under age 21, or is blind or permanently disabled; (3) your brother or sister who has lived with you for at least one whole year prior to the day you entered an institution and holds an equity interest in the home; or (4) your “caregiver” child.

A “caregiver” child is a son or daughter that lived with you for the two whole years prior to the date you entered an institution and provided the care you needed to remain in your home. If you were healthy enough to live in your home without your child’s help, a transfer of your home to that child will not protect you from the transfer rules. All other assets can also be transferred without being counted or subjecting you to the 5-year look-back period if they are transferred correctly and fall within the other exceptions to the general rule.

Any and all assets can be transferred to your spouse or to someone else for the sole benefit of your spouse. Your spouse may also transfer any and all of the assets to someone else for the sole benefit of your spouse. This means that someone else would hold legal title to the property, but it would only be used for the needs and wishes of your spouse.

Assets may also be transferred to your child if he or she is blind or permanently disabled. You have the option of transferring such assets directly to your child or to a trust for the sole benefit of your child. Either way, these gifts would not be subject to the new transfer rules.

Finally, you may transfer any and all of your assets to a trust for the sole benefit of any disabled person under age 65. Under this exception, a disabled individual is someone whose mental or physical impairment is so severe that he or she will be unable to perform substantial gainful work in order to provide for him or herself. This mental or physical impairment must be expected either to result in death, or to last continuously for a period of at least one year. There is no statutory requirement that you be related to this disabled individual for your transfers to fall within the exception.

While exceptions to the general rule on transfers of gifts do exist, it is very important that you speak with an attorney before making any transfers to ensure that you will still qualify for MassHealth. The 5-year look-back period is a long time to wait to be eligible for the services you need.

Regardless of the amount, any gift that is made is a transfer and is subject to a look-back period of five-years for MassHealth (Medicaid) purposes. This doesn’t mean that the State will take that money, but rather, that the State will not pay for the donor’s long-term care costs until the five-year look-back is exhausted, or in the alternative, until all the gifts that have been transferred are used to pay for the institutionalized person’s care.

The sum that most clients feel that can be gifted (erroneously) without a look-back is $10,000. This amount actually relates to a past year’s annual amount that could have been gifted on an annual basis to as many individuals as the donor wishes without the need to file a GIFT TAX return. This has NOTHING to do with the look-back period when applying for MassHealth (Medicaid) coverage of a nursing home. However, the exemption in 2010 for gift giving on an annual basis is $13,000 per donee per year. Again, this is only a tax amount gift, and is not a Medicaid or asset protection plan exempt amount. A gift of $13,000 from a parent to a child will constitute a non-taxable gift, but this gift will carry with it a waiting period of five-years relative to MassHealth (Medicaid) qualification.

Far too often, family, friends, and other non-professional advisors provide well-intended but erroneous advice that can lead to significant adverse consequences if relied upon. If in doubt, it is always appropriate to contact a professional accountant, geriatric care manager, attorney, or other financial advisor for the appropriate and up to date laws relative to gifts, Medicaid planning, taxes, etc.

If you are unsure about how to find a qualified elder law attorney contact the National Academy of Elder Law Attorneys.

I drafted a follow-up to this blog, dealing with the exceptions to the gifting rule. It can be found here.

This blog was modified from one originally posted by Attorney Hy Darling from Bacon Wilson, Attorneys at Law in Springfield, MA. Its original version can be found here.

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated – and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so – as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”