Adamsky Law Offices Blog

What Happens to your Home if you enter a Nursing Home?

2012-01-10T13:26:00.000-05:00

Most of the time you should not have to sell your home in order to qualify for Medicaid coverage of nursing home care. The state is allowed to file a claim against your house after you die, but they probably won’t force you to sell it right away. Often the house is the only asset left when a person enters a nursing home, so many ask if there is anything that can be done to protect it at that time.

If you try to give your house to your children (or someone else) at the time you need nursing home care, it will probably make you ineligible to get Medicaid. There are a few exceptions where you can transfer your home to someone without incurring a Medicaid penalty. You can transfer your home to your spouse, a child under age 21, a child who is blind or disabled, a trust for the benefit of a disabled person, a sibling who lives with you and has an equity interest in the home, or a “caretaker child” who has lived with you and provided care for you. The rules are quite particular, so you must consult an attorney if you have any of these situations.

If you sell your home, then the proceeds will make you ineligible for Medicaid and you will have to spend them on your care. If you keep your home, Medicaid will probably put a lien on it. You won’t be able to sell it during your lifetime without paying off the lien.

If you die, still owning the house, and there is a Medicaid lien, the State will contact your Executor with the amount of the claim. Your Executor will have to satisfy the State’s claim (this is called “Estate Recovery”) out of the Estate assets. Usually the only way to pay the claim is by selling the house. If there is any money left from the sale, after paying off Medicaid, it can go to your family. But if there isn’t enough value in the house, the State gets paid first and your heirs may get nothing. Estate recovery is not allowed while your spouse or minor or disabled child are still living in the home.

If you and your spouse were joint owners of the home and your spouse becomes sole owner after your passing, then the State cannot proceed with any estate recovery (not even after the death of your spouse – unless your spouse gets Medicaid benefits later on). In many cases we recommend that the house be transferred into the name of the community spouse if one spouse is in a nursing home. This avoids any lien issues and is allowed under the rules. There are some other exceptions to estate recovery under the “undue hardship” rules. Once again, these rules are quite specific and difficult to apply, so good legal advice is necessary.

In some cases there may be a way to save the house for a spouse or children, but without advanced planning the house is often lost to nursing home costs. It really makes sense, if you own a home, to see an Elder Law Attorney and plan ahead so your home can be protected in the best way possible for you and your family.

End of Life Care and Advanced Directives

2011-12-14T13:09:00.000-05:00

A new study, reported in the Journal of the American Medical Association, shows that when medical personnel know what kind of end-of-life care a patient wants, then the patient is more likely to be spared overly aggressive care and may die at home rather than in a hospital. The patient’s quality of life is usually better and they are more likely to get Hospice care. As a side benefit, the Medicare program saves over $5,000 per person when the individual has an Advanced Directive. Treatment at end-of-life accounts for more than 25% of Medicare expenditures.

Advanced Directives include: Health Care Proxies, Living Wills, and Powers of Attorney for Health Care. These documents let families and health care providers know what type of care a patient may want, and may allow a family member to make medical decisions for a patient who is incapable of expressing her wishes at the time of care. This is the most important planning tool that you can have and everyone (over age 18) should have one in place, no matter what.

It is vital that, in addition to executing an Advanced Directive, you tell your named Health Care Agent what kind of care you want. There are checklists and guides online that can help you with this difficult discussion. But, it may be that you just need to discuss your basic feelings about medical care, quality of life, and end-of-life issues. You may not have to discuss various disease states and specific wishes. You just have to let your family know how you feel about basic care options.

Another recent study, published in the medical journal The Lancet, found that even though about one-third of Medicare beneficiaries had an operation in their last year of life, the surgery didn’t usually help. Areas of the country with higher surgical rates also had higher death rates. You shouldn’t make any specific medical decisions based on this study, but it is indicative of the need to carefully consider surgery for those near the end-of-life. The key issue is that until death happens you don’t really know if the end is near. The tendency is to keep trying to save life. What needs to be done is a thorough review and discussion of the situation to help determine if death appears to be near and then what treatment options make sense.

As difficult as it may seem, it is important to think about medical care options, now and in the future. There will be some time when you are close to the end of your life and the medical care you get may make the difference between as good an end as possible, and a miserable death. You should discuss this with your family and loved-ones and ensure that you have an Advanced Directive for health care. See your Elder Law Attorney to ensure it is properly drafted and executed.

Harry's Law gets Medicaid Planning All Wrong

2011-11-07T15:40:00.000-05:00

I usually enjoy David Kelley's crazy law-related television shows like Boston Legal and Harry's Law. They are great fun and often give some good portrayals of lawyers and legal issues. But, I'm always laughing at how a client comes in to the office in the morning and somehow they are in Court in the afternoon - sometimes with a jury there. It takes years to get into Court most of the time and at least several days to get a jury together and ready for a trial. But, I'll allow some literary license to TV to keep the story moving.

But, I don't like it when they get the law completely wrong and especially when they have the lawyers participate in fraud. Last week's episode of Harry's Law got the Medicaid rules wrong, and put lawyers in a bad light. Let me explain.

First, Kelley got Medicaid law all wrong. The couple in question only had a house and the husband needed nursing home care. The wife said she needed to get a divorce to save the house. This is wrong. Medicaid law allows the Community Spouse to keep the family home even though the other spouse is in a nursing home and on Medicaid benefits. She could also have kept several thousand dollars in extra cash as her resource allowance. There is no need for a normal couple to divorce in order to get Medicaid. Also, they said "Medicare" several times when they meant "Medicaid." Those terms trip us all up once in a while, but if you're writing a script for national TV you should get it right.

Second, it is possible to get a divorce and split assets equitably, and later apply for Medicaid, and this is not fraud. In some cases, for various reasons, it may make sense for a couple to divorce. Normally a divorcing couple will split assets equally, but in many divorces there is an unequal division of assets for some reason that makes it fair and reasonable to do so. If a Court approves a divorce settlement, then it is binding on the government to follow that judgment. The transfer of assets from one spouse to another would be by order of the Court and so not a disqualifying transfer for Medicaid eligibility purposes. A subsequent application for Medicaid that properly disclosed this and all other financial transactions would not be fraud.

I am disappointed that David Kelley and Harry's Law would portray lawyers as so willing to commit fraud (as the story supposed they were doing). Every lawyer I know is highly ethical and would not participate in fraud. We have ethical training all of the time and are thoroughly aware of our duties to the Courts and the Government to engage in good behavior and not participate in, nor permit our clients to engage in, fraud.

And, perhaps worst of all, David Kelley did not consult with an Elder Law Attorney to ensure he understood the rules of Medicaid before he wrote the script. It was wrong in so many ways. I enjoy the show, but I'm disappointed in David Kelley.

PS - I always enjoyed James Spader on Boston Legal and it turns out I have a small connection with him. My mother and his mother taught together at Pike School in Andover, Mass. James and I both attended pre-school there, and of course I don't remember it, but we were in the same pre-school group.

Medicaid Income and Asset allowances for 2012 increase!

2011-11-02T11:42:00.000-05:00

After staying the same for two years, the community spouse resource allowance (CSRA) and the maximum monthly maintenance needs allowance (MMMNA) will increase for 2012, the Centers for Medicare and Medicaid Services just announced.

The 2012 minimum CSRA is $22,728 and the maximum is $113,640. The new maximum monthly maintenance needs allowance is $2,841. The minimum monthly maintenance needs allowance remains $1,828.75 until July 1, 2012.

Medicare Part B Premium for 2012

2011-10-27T15:05:00.000-05:00

Good News! Medicare's monthly premium will be lower than expected next year. The basic premium for Medicare Part B will be $99.90 a month, only a $3.50 increase over the $96.40 a month that most beneficiaries have been paying since 2008.

Here are the new Medicare figures for 2012:

• Basic Part B premium: $99.90/month
• Part B deductible: $140 (was $162)
• Part A deductible: $1,156 (was $1,132)
• Co-payment for hospital stay days 61-90: $289/day (was $283)
• Co-payment for hospital stay days 91 and beyond: $578/day (was $566)
• Skilled nursing facility co-payment, days 21-100: $144.50/day (was $141.50)

Higher-income beneficiaries will pay higher Part B premiums.

• Individuals with annual incomes between $85,000 and $107,000 and married couples with annual incomes between $170,000 and $214,000 will pay a monthly premium of $139.90 (was $161.50).
• Individuals with annual incomes between $107,000 and $160,000 and married couples with annual incomes between $214,000 and $320,000 will pay a monthly premium of $199.80 (was $230.70).
• Individuals with annual incomes between $160,000 and $214,000 and married couples with annual incomes between $320,000 and $428,000 will pay a monthly premium of $259.70 (was $299.90).
• Individuals with annual incomes of $214,000 or more and married couples with annual incomes of $428,000 or more will pay a monthly premium of $319.70 (was $369.10).

The Social Security Administration uses the income reported two years ago to determine a Part B beneficiary's premiums. So the income reported on a beneficiary's 2010 tax return is used to determine whether the beneficiary must pay a higher monthly Part B premium in 2012. If you had significant changes in income in the last two years you can request a review of your premium.

Odd Funeral Requests

2011-10-26T12:58:00.000-05:00

I discuss funeral planning with most of my clients, but not in great detail. I just suggest that they make their wishes known to their family so they can be followed. Dying can be a time for solemn ceremony or whimsical farce. Many notable celebrities and eccentrics have odd funeral wishes. They were collected in the linked BBC article, but here are a couple:

Frank Sinatra had a Catholic funeral. But placed in his coffin were a bottle of whiskey, a Zippo lighter, and 10 dimes - to be used, it's reported, for any emergency phone calls.

Beverly Hills socialite Sandra West, widow of an oil baron, demanded that she be buried in a lacy nightgown, while sitting in the front seat of her blue Ferrari. After a court fight, her wishes were followed.

http://www.bbc.co.uk/news/magazine-15068696

IRS Announces Inflation Adjustments

2011-10-21T13:12:00.000-05:00

The IRS announced that, for tax year 2012, personal exemptions and standard deductions will rise and tax brackets will widen due to inflation. The Service provided the following details:

The value of each personal and dependent exemption, available to most taxpayers, is $3,800, up $100 from 2011.
The new standard deduction is $11,900 for married couples filing a joint return, up $300, $5,950 for singles and married individuals filing separately, up $150, and $8,700 for heads of household, up $200. Nearly two out of three taxpayers take the standard deduction, rather than itemizing deductions, such as mortgage interest, charitable contributions and state and local taxes.
Tax-bracket thresholds increase for each filing status. For a married couple filing a joint return, for example, the taxable-income threshold separating the 15-percent bracket from the 25-percent bracket is $70,700, up from $69,000 in 2011.
For an estate of any decedent dying during calendar year 2012, the basic exclusion from estate tax amount is $5,120,000, up from $5,000,000 for calendar year 2011. Also, if the executor chooses to use the special use valuation method for qualified real property, the aggregate decrease in the value of the property resulting from the choice cannot exceed $1,040,000, up from $1,020,000 for 2011.
The annual exclusion for gifts remains at $13,000.

Social Security increase announced for 2012

2011-10-19T09:37:00.000-05:00

The Federal Government announced that Social Security recipients will get a 3.6% increase in benefits next year, the first increase since 2009. The increase applies to checks for 2012. Since 1975, benefits have been tied to inflation and almost always went up, but the recession of the last few years has left the inflation index lower or unchanged, so Social Security benefits were unchanged in 2010 and 2011, as well (they can't go down). But, this doesn't mean what you get will actually go up, there will be increases in Medicare costs as well. Speaking of which, the open enrollment period for Medicare plans is going on right now (it started and ends earlier this year than in previous years) so it's time to review your plan and either stay with it, or pick a new one for next year.

Hiring a Caregiver - Employment Issues

2011-10-18T13:44:00.000-05:00

As you get older, you may (someday) need help with your everyday activities. For some, that means going to a nursing home. But most people want to stay home, so you might think about hiring an at-home caregiver. You need to consider some important employment issues before you do.

There are two major options when getting an at-home caregiver. You can either go through a home health agency, or you can hire a person directly. Going through an agency means you are paying the agency for them to provide caregivers. Doing it on your own means you have to find the caregiver and hire that person directly.

When you go through a home health agency, the agency is the employer, so you won't have to worry about employer issues such as tax and liability. The agency will take care of screening the employees, doing background checks, and providing insurance. The agency will schedule your caregivers, and should send a replacement if a regular caregiver is not available.
Make sure you check on the coverage quality of your chosen agency. The best agencies will have someone there when scheduled almost all of the time. If you need care, you don’t want gaps in your schedule. Good agencies will ensure this doesn’t happen.

One drawback to using an agency is that over time you may get many caregivers. You might be receiving quite personal care and would want to be familiar with your caregivers. Many people prefer to have only one or two different caregivers. Most agencies will work on continuity, but may have to fill sick-calls with someone that you don’t know.

If you don’t use an agency, then you will have to hire a caregiver directly. This can be less costly, but it puts all of the burden on you. You have to search for a caregiver, interview and screen the person, and then hire and pay them directly. You will have to consider all of the tax and liability issues, including payroll, taxes and verification of eligibility to work in the United States (immigration issues).

Many people think they can hire an aide as an independent contractor and pay the aide without withholding taxes. This is rarely true. Federal and State governments have rules and regulations regarding employees and independent contractors. It is highly unlikely that an at-home caregiver will qualify to be an independent contractor. For the most part your caregiver will be an employee and you will probably need a payroll service to help you with income-tax and Medicare withholding and the filing of employer tax forms. You will also need to get Worker’s Compensation insurance.

The penalties for improperly categorizing an employee can be severe, so it’s really not a good idea to risk it. The penalties for failing to withhold and pay income-taxes can be 100% of the amount that should have been paid. If a person who was misclassified as an independent contractor gets hurt on the job (which is likely with caregivers who assist with lifting and bathing) and there is no worker’s compensation insurance, you can be forced to pay all of the medical expenses. This can be tens or hundreds of thousands of dollars. Other agencies such as the Division of Unemployment may also issues fines and penalties for misclassifying workers.

You might find that there are various social service agencies in your area that can act as the “employer of record” for an at-home caregiver that you select. You might have to search to find an agency that will do it, but they are around. With this system you can pick your own caregiver (maybe even a family member) and avoid all of the employer problems, for a small additional fee to the agency.

Receiving care at home is often preferred to care in a facility. You can hire at-home caregivers, but you must ensure that you follow the rules so you don’t get into trouble. Seek the advice of an elder law attorney and accountant, or go through a licensed agency that will take care of those issues for you. Then, you can concentrate on living and not on dealing with caregivers.

Revoking a Power of Attorney

2011-10-12T12:01:00.000-05:00

Your Durable Power of Attorney is your most important planning tool. It is the legal document that allows your chosen Agent (family member, friend, or trusted advisor) to continue your personal business if you cannot do so yourself. This includes paying your bills, accepting and depositing your income, filling out legal forms, contracts and tax returns and everything else you do every day. If you die, your Executor will handle the winding up of your affairs, but if you are alive and not able to handle your affairs, someone has to do it for you.

The first thing that you have to decide (after you realize you really need a Power of Attorney) is who should be your Agent. This is easy for some people and difficult for others. Whoever you choose, that person needs to be trustworthy. Your Agent will be handling all of your money and property. The duty of an Agent is to handle everything carefully and for your benefit, but your Agent has the ability to do things improperly and incorrectly. Your Agent has the ability to steal from you. So, you have to choose someone who is honorable and honest.

Your Agent may also have to handle complex things like investments, retirement accounts, life insurance and taxes. Your Agent may (and probably should) hire professional help, but your Agent should understand financial and legal issues. You don’t have to choose an Accountant or a Lawyer; your spouse or grown children may be able to handle the job just like they handle their own affairs. But, you don’t want to choose someone that you know has trouble handling their own financial affairs.

The next thing you need to know is that you can change your mind and revoke your Power of Attorney at any time. Giving power to an Agent (through the document called a “Power of Attorney”) is just like hiring an employee (although your Agent is generally an unpaid friend or relative). And, like an employee, you can fire your Agent at any time (as long as you are competent to do so.) But, how is this best done?

You can execute a new Power of Attorney document that names a new Agent and by its terms revokes your previous document. You can also just sign a statement that you are revoking your current document. Both types of documents should be signed in front of a Notary Public who will sign and seal the document. In a plain revocation document you would identify the Power of Attorney that you are referring to by date of execution and the name of the Agent whose power you are terminating.

Then, you will need to notify everyone, who might have had dealings with your former Agent, that that person no longer has authority to work for you. This is important because third-parties who act in good faith on a Power of Attorney are not liable to you for doing so. But, if they have been informed, then they cannot properly accept the directions of your former Agent. It is best to notify everyone in writing and you will want to notify everyone with whom your former Agent may have done business and perhaps everyone with whom you do business.

You should notify your former Agent that the power under the older document has been terminated and that your former Agent should no longer try to act for you. If possible – if your former Agent cooperates – you should get back all copies of your old Power of Attorney document. You don’t want copies of a voided document floating around.

It is best to always have a valid Power of Attorney in place. If you are unhappy with your current Agent, then you can revoke that power and create a new one. See your Elder Law or Estate Planning Attorney to get a new Power of Attorney put in place as soon as possible. If you don’t have a Power of Attorney now, then call your lawyer right away, because it is your most important legal planning tool and you need to have one.

What is Dementia?

2011-09-27T13:45:00.000-05:00

Marge’s husband, George, would call for her and she would come running. But when she came into the room he would say, “Who are you? I want Marge!” She would say, “It is me, George,” and he would reply, “But you’re an old woman, I want my wife, Marge.” This was devastating for Marge. George couldn’t remember the recent times and what his wife now looked like as an older woman. All he could remember was his young bride.

Later, after George’s death, Marge was able to laugh about how silly it was. George would wake up in bed next to his wife and call for “Marge” wondering why an old woman was in the bed with him. You had to either cry or laugh about it.

George had some sort of Dementia. Probably it was Alzheimer’s Disease; a common form. But there are many types of Dementia and not everyone with memory or cognitive issues has Alzheimer’s. Dementias are classified in various ways. Most are grouped by common symptoms or the part of the brain that is affected.

Types of Dementia include: Alzheimer’s, Vascular, Lewy Body, Huntington’s, and Creutzfeldt-Jakob. Those are “primary” dementias where the disease affects the brain directly. Other medical conditions can create “secondary” dementia. These include Multiple Sclerosis, Parkinson’s, and ALS.

Symptoms vary depending on the type of disease and the area of the brain that is affected. Memory loss, especially short-term, is the most common symptom. Other symptoms include: having difficulty recalling recent events; not recognizing familiar people or places; having trouble finding the right words; difficulty performing calculations; problems planning out tasks; trouble exercising judgment; depression, agitation and aggression; and failure to maintain personal grooming.

Lewy Body Dementia victims often have highly detailed visual hallucinations. Those with Frontotemporal Dementia may have personality changes or unusual behavior, including behaving rudely or engaging in improper sexual behavior. Vascular dementia can create short-term confusion.

Some types of dementia have no known cure. Others respond well to treatment. If a loved-one is diagnosed with dementia, be sure to insist on a detailed and accurate diagnosis so proper treatment can be provided. Many times elders are just shunted off to a nursing home after a quick “diagnosis” of dementia. You wouldn’t want that done to you, so insist on a clear and accurate diagnosis.

Remember that Dementia is not just an part of ordinary aging. It is a medical condition that requires treatment and perhaps care for the elder. If you see any of the above symptoms (or other unexplained behaviors) in your loved-one, seek medical treatment and work on a care plan so your family member gets the care and assistance they need. You will want to consult with an Elder Law Attorney, with your loved-one’s financial advisor, with a Professional Care Manager, and with the doctors. You should even consider having a discussion about these issues now, before your loved-one even shows the symptoms of dementia.

Assisted Living openings available in Haverhill and N. Andover

2011-08-17T10:37:00.000-05:00

I know that many of my clients may be considering Assisted Living. There are many fine facilities in the Merrimack Valley and Southern New Hampshire and I often recommend the good care and services (especially the three meals a day) that elders can get in Assisted Living. It can be fairly costly, but it can provide a safe and healthy environment for you or your loved-one.

I have just learned that Haverhill Crossings and Ashland Farm at North Andover have openings for both their Traditional Assisted Living as well as their Harbor program for the memory impaired.

Here is the contact information for these facilities:

Frank Quintiliani
Area Director of Community Relations
Benchmark Senior Living
Cell: (603) 560-0660
fquintiliani@benchmarkquality.com

Health Insurance will have to cover birth control

2011-08-01T13:37:00.000-05:00

Birth control, breast-feeding equipment, and other medical and preventive services for women will have to be covered by health insurance plans one year from today (by August 1, 2012). The link below is to the Federal Department of Health and Human Services press release on the change in the Federal rules governing health insurance. It is part of the new health care system put in place by Congress, last year.

Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost

NH Cooling Centers - Avoid heat problems!

2011-07-22T09:32:00.003-05:00

With temperatures around 100 degrees Fahrenheit, Elders and people with disabilities may experience more difficulty than others. There are many cooling centers around the state where you can seek relief from the heat. Use the list below, or online, or check with your local municipal offices, Fire Station or Red Cross for more information.

The list is online and may be updated - check out
http://www.nh.gov/disability/information/community/coolingcenters.htm

New Hampshire Cooling Centers

ALLENSTOWN - Allenstown Police Department
ALTON - Alton Senior Center - 8:00am-4:00pm Monday-Friday
ATKINSON - Atkinson Senior Center - 9:00am-2:00pm Monday-Friday
BERLIN - Berlin Senior Center 7:30am-3:30pm Monday-Friday
BRISTOL - Bristol Area Senior Center - 8:00am-2:00pm Monday-Friday
BROOKLINE - Safety Complex - 7:30 a.m. to 4 p.m. Thursday, Friday
CANAAN - Mascoma Area Senior Center - 10:00am-4:00pm Monday-Friday
CHARLESTOWN - Charlestown Senior Center - 10:00am-4:00pm Monday-Friday
CLAREMONT - Claremont Senior Center (Acer Heights) - Noon-7:00pm Thursday
CLAREMONT - Union Episcopal Church (Old Church Rd.) - Noon-7:00pm Wednesday
CLAREMONT - Earl Bourdon Center (Maple Ave.) - 8:30am-4:30pm Thursday
CONCORD - Library (45 Green St.) - 9am-5:30pm Wednesday
CONCORD - Fire Headquarters - 11am-5pm Wednesday
DERRY - Marion Gerrish Community Center - 8am-10pm Tuesday
HANOVER - Richard Black Rec. Center - 9:00am-5:00pm Monday-Friday
HENNIKER - White Birch Senior Center - 8:00am-5:30pm Monday-Friday
HOPKINTON - Slusser Senior Center - 8:30am-4:30pm Monday-Friday
LACONIA - Laconia Senior Center - 8:30am-4:00pm Monday-Friday
LEBANON - Lebanon Library (9 East Park St.) - 10am-8pm
LEBANON - Upper Valley Senior Center (10 Campbell St.) - 9:00am-4:00pm Wed
& Thurs. (Seniors only)
LITTLETON - Littleton Area Senior Center - 8:00am-4:00pm Monday-Friday
LONDONDERRY - Londonderry Senior Center 7:30am-2:30pm Mon & Wed-Fri,
7:30am-4:30pm Tues
MANCHESTER - William B. Cashin Senior Center (151 Douglas St) - 8am-5pm
Mon-Fri
MANCHESTER - Manchester City Library (405 Pine St) - 8:30am-8:30pm Mon,
Tues, Thurs; 8:30am-5:30pm Wed & Fri
NASHUA - Senior Activity Center - 9:00am-4:00pm Monday-Friday,
9:00am-1:00pm Saturday
NEWBURY - Town Office
NEW LONDON - Chapin Senior Center - 9:00am-4:00pm Monday-Friday
NEW LONDON - Tracy Memorial Library
NORTH CONWAY - Gibons Center of Senior Services 8:00am-4:00pm
Monday-Friday
NORTH HAVERHILL - Horsemeadow Senior Center - 8:00am-4:00pm Monday-Friday
ORANGE - Orange Emergency Operations Center
PELHAM - Pelham Senior Center - 8:00am-2:00pm Monday-Friday
PLAISTOW - Plaistow Public Library - 9 a.m. to 7:30 p.m. Thursday, Friday
PLYMOUTH - Plymouth Regional Senior Center - 7:00am-4:00pm Monday-Friday
PORTSMOUTH - Wentworth Connections Community Center for people aged 60+
(127 Parrott Ave.) - open until 4 pm
For transportation, call 431-8677
PORTSMOUTH - Portsmouth Public Library (175 Parrot Ave) open until 9pm
Mon-Thurs, & until 5:30pm on Fri & 5pm Sat.
PORTSMOUTH - Portsmouth Senior Citizens Center - 8:00am-4:00pm
Monday-Friday
ROCHESTER - Public Library (65 South Main St.) - 9am to 8:30pm - Thursday
& 9am- 5pm Fri
ROCHESTER - City Hall Council Chambers (31 Wakefield St.) - 8am-5pm - Fri
SALEM - Salem Senior Services / Ingram Senior Center - 8:30am-4:30pm
Monday-Friday
SOMERSWORTH - Library (25 Main St.) - 9:00am-8:30pm Wed, 9:00am-5:30pm
Thurs & Fri, 9am-1pm Sat
SOMERSWORTH - Somersworth Filion Senior Center - 8:00am-4:00pm
Monday-Friday

ADDITIONAL TIPS:
NEVER leave a child, disabled person, elderly person or pet in a closed car on a hot, sunny day!
CLEAN air conditioner filters and ducts frequently.
KEEPING windows closed and curtains, blinds or shades drawn may keep warmer temperatures out during the daytime, opening windows during cooler hours may allow cooler air in.
AVOID strenuous physical activities during the warmer hours. If you must be active during extreme heat, have someone with you or scheduled to check on you frequently.
AVOID using electrical appliances during the warmer daytime hours. They may heat up your home and power usage may cause brownout.
STAY on lower levels of buildings as much as possible during hotter weather.
VISIT friends, relatives & businesses with air conditioning if you don't have it.
CHECK on friends, relatives, neighbors who are elderly or disabled.
WEAR loose, light weight and light-colored clothing.
COVER entire body when out in the sunlight for protection from the sun.
WEAR a lightweight hat for shade of the head.
USE adequate SPF sun-protection outside.
DRINK plenty of water.
AVOID sweetened, caffeinated or alcoholic beverages. If you must restrict fluid intake, check with your physician about possibly chewing ice.

$3 Trillion is cost of caring for parents - paid by children not government!

2011-07-11T07:14:00.001-05:00

Americans who take time off work to care for their aging parents are losing an estimated $3 trillion dollars in wages, pension and Social Security benefits, according to a new study by the insurance company, MetLife. Meanwhile, the percentage of adult children providing basic care for their parents has skyrocketed in recent years. Nearly 10 million adults age 50 and over care for an aging parent, MetLife says. For the individual female caregiver, the cost impact of caregiving on in terms of lost wages, pension and Social Security benefits averages $324,044. For male caregivers, the figure is $283,716.

The study also identified a dramatic rise in the share of men and women providing basic parental care over the past decade and a half. In 1994, only 9 percent of women and 3 percent of men and were providing care. By 2008, the percentage of women caregivers had more than tripled to 28 percent, while the figure for men had quintupled to 17 percent. "Basic care" is defined as help with personal activities like dressing, feeding, and bathing. Daughters are more likely to provide basic care and sons are more likely to provide financial assistance, the study found.

"Undoubtedly, the impact of the aging population has resulted in increased need within families for family caregiving support," the study notes. At the same time, MetLife found that adult children age 50 and over who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents. The study was based on an analysis of data from the 2008 National Health and Retirement Study (HRS).

The findings have implications for individuals, employers and policymakers, MetLife concludes. Individuals, it says, should consider their own health when caregiving and should prepare financially for their own retirement. Employers can provide retirement planning and stress management information and assist employees with accommodations like flex-time and family leave.
On the policy side, although only a few states mandate paid family and medical leave, "clearly this policy would benefit working caregivers who need to take leave to care for an aging parent," the study notes. MetLife also notes that the CLASS Act;a voluntary long-term care insurance program that is part of the new federal health reform law, will provide some coverage for long-term care needs as well as raise public awareness of the issue.

For more on the study, "The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents," click here.

Source - Elder Law Answers (www.elderlawanswers.com)

Anonymous Letter on Trash

2011-06-23T11:41:00.000-05:00

Our law office received an anonymous letter regarding some trash spilled on Broad Street in Nashua on June 16, 2011. The letter noted that our name was found on a prescription bottle (and I assume some sort of internet search was done to match the name). That trash was not ours and has nothing to do with the Adamsky Law Offices nor the Adamsky family. Mrs. Adamsky is a Registered Pharmacist and her name appears on every bottle when she fills a prescription. The bottle probably belonged to one of her patients.

Thank you to the good person who picked up that trash. We understand from your letter that it was disposed of properly and that the confidentiality of the careless person who dropped this trash was maintained. You are to be commended for your kind act. And, we agree that everyone should be careful with their garbage and see that it is properly handled.

And, we remind everyone to review their procedures for disposing of sensitive information such as prescription bottles. It is recommended that you soak off the label before you dispose of it. Also, if you have unused prescription medicines, please check with your local authorities for the best way to dispose of them safely and securely.

Glasses case left at my office

2011-05-06T14:18:00.000-05:00

One of my clients (or a client's family member) left a case for their glasses at my office this week. It looks pretty fancy and expensive. It has a name brand written on it. If it's yours, please call and give me the brand name for identification purposes. Then we will work on getting it back to you.

Ed.

It's really Spring!

2011-04-15T07:03:00.001-05:00

It's clearly Spring around here. On the way to work this morning I saw several groups of Turkeys. In each group there was at least one male presenting his tail for the females. This looks like the classic picture you see of a Turkey around Thanksgiving with his big tail unfurled like a peacock. But, you won't see that in November, it is courting behavior used in the Spring to find a mate.

Imagine if we humans had some sort of mating system like that. The males puff themselves up, furl out their tails and strut around waiting for a female to find them attractive ... that would be something ... oh, wait!

Three Turkeys at my Bird Feeder - April 2011

Violent Dementia Patients

2011-04-05T10:49:00.000-05:00

I have often written about dealing with dementia patients. They do not react like people whose brains are functioning normally. About 5-10% of dimentia patients exhibit violent behavior. The cause of the violent behavior may not be known and it can come from any number of triggers (or nothing). Dealing with a violent family member can be difficult. Here are some tips:

1.Back down. If your loved-one gets angry because he doesn’t want to take a shower, drop it and try again later when his mood has improved.

2.Apologize, even if it’s not your fault. This will buy you time and good will.

3.Change the topic. Stay calm and change the subject to something your loved-one usually enjoys.

4.Remember the world is distorted for those with Dementia. They are sensitive to noise and become fatigued easily. What is going on around them may not make sense as their brain cannot comprehend or remember context.

5.Call for help. For emergencies, call 911. For non-emergencies, call the Alzheimer’s Association’s 24-hour hotline: 1-800-272-3900.

[Derived from other on-line resources.]

Dementia and Delusions

2011-04-04T10:29:00.001-05:00

The New York Times recently posted the article linked below about dementia. I have been discussing this with my clients for years. You cannot usually engage in a logical argument with a one-year old child, and sometimes you cannot do so with an elder who has advanced dementia. You must deal with the disease of the mind in a way that works for that person.

The first time I heard of this issue was from a nurse at a nursing home. She said sometimes you just have to lie to someone, but she didn't call it a "lie" she said most of the time the "lies" were not big enough to even be called a "fib" this nurse called it a "fiblet." That is a little white-lie that helps to calm and redirect the patient so she is not upset by the issue.

You probably don't want to keep telling someone that her loved-one has died, but you might want to tell her that lunch will arive "soon" even though she just ate. I faced this issue personally with my grandmother. After my grandfather died, she kept asking for him. When we told her (again and again) that he was dead she cried like it was the first time she heard it. This happened for a little while before we realized it was cruel and just plain stupid to keep telling her something terrible that she could not remember. From then on we said he was out and would be back soon. This worked just fine.

I highly recommend going to the Alzheimer's Assocation website http://www.alz.org/ and reviewing their educational material. If your family member or friend has dementia, then you need to learn how to deal with these issues before they become a problem.

Packing Away a Delusion - NYTimes.com

Prescription Drug Disposal

2011-03-29T13:06:00.003-05:00

NATIONAL TAKE BACK INITIATIVE PELHAM POLICE DEPARTMENT - COMMUNITY ROOM APRIL 30, 2011 10:00 AM - 2:00 PM

The "Take Back" initiative addresses a public safety and health issue. More than seven million Americans currently abuse prescription drugs, according to the 2009 Substance Abuse and Mental Health Administration’s National Survey on Drug Use and Health. Each day, approximately, 2,500 teens use prescription drugs to get high for the first time according to the Partnership for a Drug Free America. Studies show that a majority of abused prescription drugs are obtained from family and friends, including the home medicine cabinet.

In an effort to address this problem, DEA, in conjunction with state and local law enforcement agencies conducts National Take Back Day to provide a venue for persons who wanted to dispose of unwanted and unused prescription drugs. At the last event in September, the American Public turned in more than 121 tons of pills. DEA has scheduled the second National Prescription Drug Take Back Day which will take place on Saturday, April 30, 2011, from 10:00 am - 2:00 pm at the Pelham Police Department in the Community Room. This is a great opportunity for those who missed the first event or who have subsequently accumulated unwanted, unused prescription drugs, to safely dispose of them.

Source: Pelham, NH Police Department.

IRS Targets inter-family real estate transfers - Gift Tax issue

2011-03-28T13:07:00.001-05:00

Whenever you give someone more than the annual (yearly) exemption amount, you are supposed to file a gift-tax return. There is a tax on the givers of gifts. Or course, there is a lifetime exemption of $5 million so until you give more than that, you won't owe any tax (it used to be $1 million and could revert back to that if Congress lets it happen in 2013). But, you still have to file a return if you give someone more than $13,000 in any one year.

Most people don't make large gifts, so they don't have to worry about gift-tax returns. But many people do give away their home or land (or add their child's name to the deed as a co-owner). If you put your home in joint ownership with your child, you effectively gave that child half of the value of your home. Unless your home is pretty small it's probably worth more than $26,000, so you should file a gift-tax return.

Now, the IRS is cracking down on this issue. They have targeted several states and demanded that the states turn over real estate transfer records so they can see if people are giving away homes without filing gift-tax returns. If you should have filed a return and did not, you might want to consider doing so now. If you didn't owe any tax, there shouldn't be any late filing penalty (which is based on the tax).

You should consult with your lawyer and tax advisor to ensure you do the right thing. Many lawyers advise their clients to do certain types of transfers that are not gifts for tax purposes, so you need to understand what you may have done and take the appropriate action. See your lawyer if you have any questions.

Here is a link to an article from Forbes magazine on this issue: IRS Targets Family Real Estate Transfers - William P. Barrett - Informer - Forbes

Avoid Fights when Dividing Personal Possessions

2011-03-24T12:01:00.003-05:00

Who should get the old dining room table that came from Grandma’s house? Who should get mom’s diamond ring? What about those Civil War relics from Grandpa’s side of the family? What about the family photos?

Dividing up family heirlooms can be a touchy subject. If you leave the decision until after you die, your children may end up fighting over simple personal possessions. Most of the Wills I write for clients say to split the assets equally among the children. That will be easy for the cash, stocks and bonds, but not so easy for the stuff.

In many families, the actual division is handled by the children, and done with fairness. In other families, the little things cause no end of trouble. Years of bitter feelings can come from the thoughtless actions of one child after the parents are gone. To avoid these problems, you should plan ahead and talk things over with your family. By bringing children and others in to the conversation, you can make things easier for them later. Children need to actively participate in this discussion too. If you don't like what your Mom has to say, then speak up, she might not know otherwise.

Every family handles the division of property differently and you need to figure out what will work best for your family. Some families want heirlooms to be divided equally; others feel that one child should have certain items. You can specify certain items in your Will, but it is hard to list every single thing. The family will have to reach some sort of arrangement for anything not specified in your Will. The most important thing is to discuss it with your children so they understand the how you feel. You should explain to them that you want the family to stay in harmony and not fight over mere physical objects.

These discussions are also a good opportunity to share memories and stories about the heirlooms. You get the opportunity to explain why something may be important to you, and you can find out what items are important to your children. You may think your oldest daughter wants your tea set, only to discover that it has no meaning to her and she really wants grandma's quilt.

There are several ways families can divide things. One option is for you to pick who gets what and to specify it in your Will. But, you should consider your children's interests. Don't leave a piano to a child who isn't interested in music. Another option is to ask your children what they want. If there are items that more than one person wants, you can all sit down to discuss a solution.

You could have the children do a “round robin,” where each gets a turn picking something. The kids might hold their own private auction and “buy” the assets they want. You can specify any of these ideas, or others, in your Will. But, it may be best to leave it up to your children, so they aren’t stuck with a system they don’t like. That means the best advice is to talk it out sometime soon. Nothing beats good communication for resolving issues before they become family feuds.

2011-03-14T11:18:00.003-05:00

My wife and I recently took a Winter vacation and went to the Christmas Farm Inn in Jackson, New Hampshire.

We had a great time. The Inn was very nice as were the new managers. The food was good, the room was very nice, and the spa was wonderful.

It was very snowy up north and Jackson looked like a winter wonderland. At night it was all lit up with lights. Nearby Nestlenook Farm was very pretty. We didn't go there, but heard it is a nice place too.

There is much more than I thought there was up in the White Mountain region of New Hampshire. We found great restaurants and fantastic shopping in N. Conway. But, the best part was the peace and quiet, the wonderful outdoors with mountain views, and snowy vistas, and of course the time alone with my wife.

http://www.christmasfarminn.com

NH Courts post information online

2011-03-10T15:18:00.002-05:00

The New Hampshire Probate Court is now posting online, the notices of probate matters such as appointments of executors and administratators. These are regularly published in local newspapers, but the online listings will give notice to anyone with internet access. This is great for those seeking information on estates in distant locations. It's also a worry for privacy purposes (although Probate has always been public, it's a little less public when it's not online).

If you want to check out the notices, go to the link below.

http://www.courts.state.nh.us/probate/legalnotices/index.htm

Dynasty Trusts - will they last?

2011-03-07T11:16:00.000-05:00

Apparently, the concept of trusts that go on forever (and are not subject to the Estate Tax at each generation) does not sit will with some in Government. They may feel that this is an unfair system that will protect the wealth of the super rich. Many others use the so-called "Dynasty Trusts" so this issue may affect those other than the rich. New Hampshire allows perpetual trusts, so those who don't have one now, may want to consider their use before the tax laws are changed. You can set one up in New Hampshire even if you don't live there. Consider seeing your Estate Planning attorney if you need guidance on this issue.

For more information read the Wall Street Journal article at the link below:

Tax Report: Dynasty Trusts Under Attack - WSJ.com

First HIPAA Penalty - for lack of disclosure

2011-02-25T13:07:00.000-05:00

The link below (and in the headline) is to a blog about a large HIPAA violation penalty. It is interesting to note that since HIPAA started in 2003 and until today, there have been little or no enforcement actions against doctors offices, hospitals, or other medical places for improper release of protected health information. Everyone has been (perhaps overly) careful to avoid inadvertent disclosure of information. That's great.

This big ($4.3 Million!) fine was against an insurance company that failed to properly communicate with its own customers. Patients (insured) wanted access to their own information and records (to which they are entitled) but the company did not properly respond or provide systems for customers to get the information. After attempts to work with them, and a complete lack of cooperation, the government fined the company - most of it for their failure to even respond to the complaints.

So, the moral here appears to be that small doctors offices and other medical facilities need to maintain patient privacy, but they really shouldn't worry about facing HIPAA violations as long as they try. But, they need to make sure, in their zeal to protect private information, that they allow their patients/customers the proper access to their own information.

Lessons Galore from Eye-Popping $4.3 Million HIPAA Penalty : Workplace Privacy Counsel

Seven Health Care Mistakes of Seniors

2011-02-22T16:42:00.002-05:00

As we get older, we generally have more health concerns. For a long and healthy life we must handle our health issues properly. Seniors often make mistakes when dealing with their health. Here are seven of the biggest health care mistakes made by the elderly:

1. Failing to Hear or Understand your Doctor – If you did not hear what your doctor said, ask again. If you do not understand the directions, ask for them to be written down. If you are not sure what the doctor was talking about, ask for a simpler explanation. Don’t leave the doctor’s office until you understand what is wrong with you, and what you must do about it.

2. Failing to Discuss Problems with your Doctor – Some problems are embarrassing or personal, some seem minor or trivial. Discuss all issues with your doctor. Sexual or bathroom issues may be symptoms of serious diseases. Other problems show up as simple pains and upsets. Tell your doctor about all of your problems. Maybe your doctor can help, or catch a big problem while it is still small.

3. Fighting or Hiding Aging – Our vanity can get in the way of good health. If you refuse to wear your hearing aid or glasses you may miss something important or even hurt yourself. If you refuse to use your cane or other walking assistance, you risk serious injury. Don’t be so vain, use the tools that modern technology has given us.

4. Dangers at Home – We often fail to recognize how dangerous our homes can be. Scatter rugs, poor lighting, extension cords and other hazards could send you to a nursing home with broken bones. Consider having a senior housing consultant review your home for hazards.

5. Dangers on the Road – Our mobile society virtually requires a car. It was a rite of passage when you were a teenager, so giving up your car is like giving up your independence. But, many seniors reach a point where it is no longer safe for them to drive. There is no age limit, but if you have trouble seeing or reacting, then you may need to give up driving. Plan ahead for this issue.

6. Medication Problems – Set up a schedule or system so you take your proper medications. Get all of your medications at one pharmacy so your pharmacist can check them for interactions. Take a complete list of your medications to each doctor so your treatment can be coordinated.

7. Failing to Plan – Plan for needing assistance. Don’t be afraid to ask for help, either now or in the future. Plan with your family, your professional advisors, and your community. Plan for dealing with mobility issues. Plan for ill health and disability. Your friends and family are ready and willing to help you stay healthy and happy.

Divorce, Marriage and Estate Planning

2011-02-16T14:40:00.002-05:00

Many clients ask what they should do about their estate planning after a divorce. In general, a Divorce extinguishes any rights that the ex-spouse had in the estate of the other. A Will clause that leaves assets to “my wife, Jane Smith” will be voided by a divorce, the gift will fail, and it become part of the “residue” of the estate. If the ex-spouse is named as the beneficiary of the residue, then that gift will fail as well, and the Court will use the intestate distribution rules to give the residue to the children or other heirs-at-law.

However, it is wise to change all estate planning documents to avoid any questions or ambiguity. It is especially important to review and update beneficiary designations for life insurance and other assets such as Individual Retirement Accounts.

The New Hampshire Supreme Court ruled on the issue of an IRA and an ex-wife as the named beneficiary. In The Estate of Robert Tremaine v. Lorraine Tremaine, the Court ruled that the ex-wife of the decedent should keep the proceeds of his IRA where she was still named as beneficiary at his death. This ruling came despite an agreement in their divorce that each was to keep his own retirement funds and accounts and the other gave up all rights and interests in them.

The Court found that the agreement was ambiguous as to the death benefit. It was clear that Mr. Tremaine had the right to withdraw the funds during his life, and the right to change the beneficiary, but he failed to exercise that right. The agreement to give up rights to the IRA did not necessarily include giving up the position as beneficiary if the ex-spouse did not make any changes.

This shows that it is very important to review all assets and complete new beneficiary designation forms so that your assets will pass as you want. You should not rely on outside agreements or court decrees to make those changes.

Another issue that bears further discussion is the effect of getting married on Estate and Benefits planning. A spouse has certain rights in marital assets including a general claim against the estate of a deceased spouse, even if not named in the Will. New estate planning documents should be completed if you get married.

For Medicaid purposes, all of the assets of the couple are counted in making a determination of eligibility for benefits, regardless of the origin of the assets. Pre-nuptial agreements cannot change this rule no matter what they say, because the Federal law of Medicaid and public policy overrule the agreement. This means that a well-off person who marries a less-well-off person will be responsible for the spouse’s cost of nursing home care, no matter what.

Estate Planning should not overrule love, but the consequences of marriage and divorce must be taken into account when making your Estate Plan.

Emails on corporate account not private

2011-02-14T10:19:00.002-05:00

I have been warning clients and others lately about a new online issue. In Holmes v. Petrovich Development Company, LLC, a California court ruled that emails sent by an employee to her attorney from a computer in her workplace were not protected by attorney-client privilege. This employee used a company email account (rather than a personal account) to send the emails. The company policy made it clear that emails could be monitored and were not private.

This makes it pretty clear that there is some risk (in California clearly, and everywhere else, probably) when using corporate email. Since your company probably has a policy that allows emails to be copied, read and monitored, you have little or no privacy in those emails.

If you send something to your attorney that you expect to be private, it will lose that privacy and could become public (and used against you) if you use your company email system.

This may not apply to use of a web-based email system with your own "private" address. But, the company might still be monitoring your computer use and might make a copy of your emails.

So, please don't send me (or any lawyer) an email with private information (that you want to keep private) from your employer's email account.

Long Term Care Facts

2011-02-11T10:44:00.004-05:00

The New Hampshire State Committee on Aging (SCOA) advocates on behalf of older residents of New Hampshire. They have issued the following "fact sheet" on Long Term Care (LTC)

Long Term Care is a variety of medical and non-medical services to help you live with chronic illness or disability, by providing help with health or personal needs. Services can provide light housework, meal preparation, laundry, paying bills and transportation. LTC is available in your home, senior center, retirement or assisted living facility or nursing home.

Plan and think about long term care before you need care and before a crisis occurs. Planning ahead allows you the time to talk with your doctor about your health needs. It is important to talk with your family about LTC services you might need, their costs, and how to pay for them. [You should also see your Elder Law Attorney - Ed.]

Medicare DOES NOT pay for long term care support services that are typically needed. It pays only for skilled nursing facility or home health care for certain medical conditions, and only for a limited time.

Long term care insurance DOES PAY for long term care services. As with health insurance, there are policies with varying conditions, premium costs and benefits. Under federal law, certain LTC insurance premiums are deductible in part as a medical expense. LTC insurance bought later in life can be quite expensive and not everyone qualifies for coverage.

Long term care costs can be paid by you or your family. “Private pay” costs at home ranges from $15-30/hour. Services in retirement or assisted living facilities are considerably more expensive, and a nursing home costs about $70,000/year for 24 hour LTC.

Publicly funded long term care services such as Medicaid or Caregiver Supports have medical and financial eligibility requirements. State and federally funded programs provide supports for activities of daily living, household tasks, congregate and home delivered meals, transportation, and adult day services. Services also provide family caregivers with flexiblefunding and service options for home care. Medicaid covers nursing home and community-based waiver care if financial and medical eligibility criteria, which are the same for both services, are met.

ServiceLink Resource Centers exist in each County to provide information and LTC counseling for older adults, adults living with disabilities or chronic illness, and their families and caregivers, to help “sort through the maze” of LTC services, payment options and eligibility requirements. ServiceLink Resource Centers listen to your needs, respect your privacy and help you find answers.

You can contact SCOA at 1-800-351-1888

5 Year Anniversary of the DRA

2011-02-08T10:19:00.002-05:00

Here is a guest article - edited and reposted from http://www.zeiglerseniornews.com/

Washington DC. Happy fifth birthday, DRA. Only Medicaid workers, nursing home personnel and Elder Law Attorneys would be likely to notice the anniversary of the Deficit Reduction Act. It was signed into law by President George W. Bush five years ago, on February 8, 2006. Now universally called "the DRA", the act generated controversy from its first week and is still generating controversy. The DRA made dozens of changes, but none were more important, controversial and confusing than changes in Medicaid rules for long-term care eligibility.

Seniors seeking Medicaid coverage for nursing home costs or for the small but growing "Medicaid waiver" home care still run into problems qualifying under the DRA. And these problems will continue. Elder law attorneys who mostly opposed the DRA have since been retained by thousands of seniors seeking to tread the difficult path of protecting assets while qualifying for Medicaid.

The DRA made two changes that affect whether Granny is able to get Medicaid to cover her home care or nursing home costs, often $6,000 to $11,000 a month. That is a huge benefit, if she qualifies. It is a huge burden on her and her family if she does not qualify. One DRA provision changed Medicaid's "look-back period" from three years to five years. Gifts by Granny made during the five years before applying for Medicaid are penalized, dollar for dollar.

The other provision is more confusing. It changed the "start date" of those gifting penalties. Prior to the DRA, a gift this month penalized Granny starting next month. Give away $25,000 this month, and you were ineligible for Medicaid for the next month and the next $25,000 in nursing home bills. Under the DRA, the penalty for gifting does start until Granny actually applies for Medicaid and is eligible. That usually means that Granny goes into a nursing home, her assets drop below a certain level -- $2,000 in all but 16 states - and she applies for Medicaid. Medicaid then finds her "otherwise eligible" but imposes a penalty period in which Granny must private-pay nursing home costs. That penalty period will cause Granny to "re-pay" the grand total (pun intended) of all gifting during the past five years.

How is Granny able to re-pay $10,000 or $25,000 or any amount of five-years-worth of total gifts if her assets are now less than $2,000? Best way she can. Likely this Granny who thought she was being generous has just become a serious financial burden on her family. Those recipients of the gifts during the past five years may be asked to give them all back. Guess what? They spent them already. Confused? All generous seniors and seniors with assets who face nursing home admission are confused, along with their families. And any elder law attorney could tell you that the explanation you just read is a gross over-simplification.

First of all, penalizable "gifting" is defined a bit differently under the DRA than normal people would define it. What the DRA penalizes is "transfers without fair market value." If Granny buys or sells something for a reasonable price, that transaction is not penalized. She got fair market value. But if she gives Junior her car or sells it to him for $100, that is penalized. What about the widespread street knowledge that it is legal to give away $10,000 per person per year? First of all, the annual gift exclusion is now $13,000. Secondly, it is not true.

How can it be $13,000 but not true? The annual gifting exclusion is only an Internal Revenue Service rule. If you "gift" someone $13,000 or less this year, you do not have to report it on a Form 709. You do not pay one penny of gift tax. The recipient does not report it and does not pay one penny of tax. Sounds good. But just a second. That was only the IRS. Medicaid has never honored the annual gift exclusion. Not when it was $10,000 (most people still think it is $10,000), not when it was $11,000, not when it was $12,000, and not now that it is $13,000. Every gift is totaled up for the five years prior to Medicaid application, and all gifts count against Granny's nursing home eligibility. Most state Medicaid agencies don't mess with small gifts, say wedding presents, church tithes and small amounts.

There is an epidemic of seniors giving away $10,000 checks each year because someone told them that amount is "legal". The DRA does not say that amount is legal, and Medicaid does not say it. So Granny should stop giving away assets five years before she goes into a nursing home or needs Medicaid home care. How does she know when that five-year period starts? She does not know. That is why it is called a "look-back period." Looking back from nursing home admission, you can tell exactly when those five years started. But looking forward, only the Good Lord knows.

Come to think of it, there was a third Medicaid change in the DRA. If Granny and her elder law attorney want to use annuities to qualify for Medicaid, she can't buy just any annuity from the guy down the street who has an insurance license. She must buy a "DRA-compliant annuity". Few insurance agents have these in their product portfolios and few know much about this. An elder law attorney can guide a senior to a DRA-compliant annuity, and, just as importantly, let the senior know whether annuity strategy or some other strategy will drop assets below Medicaid limits without triggering ineligibility - a narrow path.

Under the "new" five-year-old DRA, a senior needing Medicaid coverage for home care or nursing home would be well-advised to consult an elder law attorney who does Medicaid planning. These are the same attorneys who mostly fought the DRA and have spent five years figuring out how to navigate these strange waters. To locate such an attorney in your area, go online to www.naela.org. That is the site of the National Academy of Elder Law Attorneys.

Navigating the strange waters of the DRA without a "Captain" familiar with the rules would risk not getting eligibility, losing financial assets, suffering gifting penalties, and losing the family home to a Medicaid lien. The Captain, a Medicaid-planning attorney, could minimize or eliminate these multiple risks.

One thing has not changed in the five years since the DRA: The family with a plan to cover elder care costs is miles ahead of the majority with no plan. Some things never change.

4 Planning Tips for Parents of Disabled Children

2011-02-01T09:22:00.001-05:00

Buy enough life insurance. You can’t be replaced, but someone will have to fill in if you aren’t there. Your family will probably have to pay for some services that you used to provide. You can provide the money necessary, even if you don’t have much now, with life insurance.

Set up a trust. Any assets left for a child with special needs, including life insurance proceeds, should be held in trust. Leaving money directly to someone with a special need jeopardizes public benefits. Some families disinherit children with special needs, relying on siblings to care for them. This approach is fraught with potential problems. The best approach is a trust fund set aside for the child with special needs.

Write down the care plan. You must write down what a future caregiver will need to know about your special needs child. You may know everything but you need to write it down so it can be passed on. The memo or letter can be kept in the attorney's files or with the parent's estate plan.

Coordinate with other family members. Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a special need. If a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest to the trust.

Senior Exploitation checklist

2011-02-01T08:08:00.000-05:00

An Elder Law Attorney has developed a checklist of possible indications of elderly financial
exploitation and it is now available online. It is the feature news article in the
newsroom of www.ZeiglerSeniorNews.com The checklist was developed by attorney
Pam Wright of West Tennessee Legal Services. It will be a work-in-progress as
other indications of possible elder financial abuse are added to the checklist.

ZEIGLERSENIORNEWS.NET

The Right of Revolution

2011-01-27T13:56:00.000-05:00

The link below is to a CNN editorial article by Carl T. Bogus a professor of law at Roger William University School of Law. He speaks to the Second Amendment and whether or not it was intended to allow citizens to bear arms only to protect the State against foreign invaders or to allow them to fight with their own government (if and when that government became tyrannical).

As a resident of New Hampshire, I have to point out that our State Constitution is much clearer on these issues. The right to bear arms does not contain any clauses related to the militia. Article 2-a says "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."

And a "right of revolution" is written right into our state Constitution. Article 10 says "Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind."

The right to bear arms was added fairly recently (1982), but the Right of Revolution was written in 1784. I submit that Prof. Bogus is wrong.

There's no right of revolution in a democracy - CNN.com

Special Needs Trusts

2011-01-15T11:01:00.000-05:00

Here is a good article with a quick summary of Special Needs Trusts.

See my similar article in the Merrimack Journal

The Advantages and Burdens of Trusts for the Disabled - NYTimes.com

Mitchell’s Center for Elder Justice and Policy is coming of age | William Mitchell News

2011-01-11T12:32:00.000-05:00

Kim Dayton, a NAELA Elder Law Attorney and Law School Professor has helped from a new Center for Elder Justice. The linked article is from the school's website.

Mitchell’s Center for Elder Justice and Policy is coming of age William Mitchell News

Alzheimer’s Therapy Focuses on Care - NYTimes.com

2011-01-03T12:21:00.000-05:00

Here is a great article on a new wave of Alzheimer's care. Caregivers have realized that the medical version of care is not quite right for those with memory disorders. Giving them love, attention and the foods they want, do the trick better than drugs and diapers.

I don't know about you, but I'll prefer the chocolate, bacon and other things I love to drugs and restraints if I'm ever in a memory disorder unit.

Alzheimer’s Therapy Focuses on Care - NYTimes.com

Don't you dare be late - but the IRS, well....

2010-12-16T15:45:00.002-05:00

A form is required for this year (2010) due to the law that phased out the estate-tax (which law "sunsets" on 12/31/10) to get a "step-up" in basis on a portion of the assets of an estate that might otherwise have been subject to the estate-tax. The need for this form was created in 2001 when the law was passed. But nobody (especially the IRS) expected the law to reach 2010 unchanged. Surprise! It did!

So, did the IRS figure out how to deal with this in late 2009? No.

Did the IRS figure out how to deal with this in early 2010? No.

Have they figured it out yet for sure? No.

How many days left in 2010? (15 as I write this).

So, a lawyer friend of mine got his hands on an advance copy of the form (already a previous advance version had been released and withdrawn) and posted it on his blog. [see the link below]

You can read his write-up on the law and go to the link to see the form. But, really, why bother, the IRS will probably change things again. You have until the deadline for filing the 2010 income-tax return (April 15th - in case you forgot) to file this form. You don't have to worry if the person had an estate smaller than $1 million or if nobody died in your family this year. But, why hurry? Who cares about deadlines, certainly not the IRS ... or then again, maybe they do (at least when it's your deadline, not theirs!)

Internal Revenue Service Releases 12/16/2010 Advance Proof Copy of Form 8939 Required for Step-up in Basis for 2010 Deaths « Massachusetts Estate Planning, Probate & Elder Law

Addition after Congress approved the new tax bill. Maybe the IRS really does know what it's doing. The new tax bill contains a provision that allows the Executor of a person who died in 2010 to elect either the no-estate-tax rule of 2010 or the new estate-tax rule. With the new rule, an estate of up to $5 million gets a full step-up in basis and pays no tax. Those with estates larger than that would probably prefer no step-up (or at least the $1.3 million limit of step-up) and no estate-tax. So, perhaps some people will still need the form that the IRS hasn't finished yet. But, most people will probably elect under the new rule and the form won't be needed. Maybe the IRS lawyers were up on Capitol Hill pushing this part of the new law to Congressional staffers.

Website on Genealogy and Obituaries

2010-12-13T12:41:00.000-05:00

For those doing some family research, or trying to write an obituary, or those just trying to find a notice of someone they know has passed, there is a website for that.

Check this out:
Newspaper Obituaries, Genealogy, Obituary, Funeral Resources

Social Security "Do Over" loophole closed

2010-12-13T12:11:00.002-05:00

The Social Security Administration has eliminated a loophole that had allowed Social Security recipients to start receiving benefits when they first became eligible but then gave them a chance to re-do their benefits at a higher level later on.

Anyone can collect Social Security benefits starting at age 62, but if you elect to get early benefits, your monthly check will be much lower than if you wait until full retirement age. Many people elect early benefits, but then realize it was a mistake. Because of a rule allowing you to change your mind, many people were electing early benefits as a planning technique.

A provision of Social Security law had allowed beneficiaries to apply for early benefits but at a later age they could withdraw their application, reapply and receive full retirement benefits. All they had to do was pay back all of the benefits they had received. Since there was no interest added to this, it gave those who could afford to do the pay-back a second look at their choice, at no additional cost. Of course, this really only benefited those wealthy enough to afford the pay-back. Those who spent their monthly checks were stuck with the lower amount and could not afford the "do-over."

Under the new rules, retirees may still withdraw their Social Security applications, but only once and only within 12 months of first receiving benefits. You can still change your mind if you file for early benefits, but only if you change your mind quick enough. And, you still have to pay back those early benefits. And, you can only do it once. So, this planning strategy is no longer available for those who could afford to take the chance for several years and make a possibly large pay-back in order to get higher monthly benefits.

Here is the SSA news-release on the change: http://www.ssa.gov/pressoffice/pr/withdrawal-policy-pr.html

New Homestead Law in Massachusetts

2010-12-09T11:05:00.001-05:00

The House and Senate have both passed a revised Homestead bill for Massachusetts and it is expected that the Governor will sign the bill and it should become law around April of 2011.

The revised Homestead law seeks to eliminate several issues and questions regarding the older version. The newest addition to the law is an automatic homestead of $125,000 for everyone without the need to take any action. This matches the Homestead exemption under Federal Bankruptcy law and gives a minimum protection to everyone without the need to see a lawyer or fill out a form and file it at the Registry of Deeds.

However, there still is the $500,000 exemption that you must claim by filling out a Declaration of Homestead and filing it with the Registry of Deeds. Everyone should really do this, so if you haven't done so already, get it done! You can use an attorney, or do it yourself. Forms are available on the Registry of Deeds website and in many other places. (see http://www.lowelldeeds.com/)

Some of the clarifications in the new law are that a Trust can file a Homestead Declaration and it protects the beneficiaries of the Trust (who use the house as a principal residence), and the recording of a mortgage or a re-finance does not invalidate a previously filed Declaration. A homestead is subordinate (in second place) to a valid mortgage, but it protects the home from other creditors.

Also made clear is that the proceeds of the sale of a homestead property are protected until they are invested in a new homestead property or for one year (whichever comes first. )

The Homestead protection means that creditors cannot seize your home to pay your debts (and make you homeless). It's a great idea and protects the sanctity of the home for spouses and minor children, especially in hard times. Of course, it is second to your mortgage and some valid government debts, so it isn't an absolute protection, but it's worthwhile filing the Declaration.

All older homesteads are "grandfathered" in under the new law and don't need to be re-filed. Also, in the future, instead of just one person filing the homestead, all co-owners must sign the declaration.

For the text of the law see: Bill Text - S2406

Tax Agreement Reached

2010-12-07T11:03:00.004-05:00

President Obama announced yesterday a compromise "framework" to resolve the year-end standoff over the extension of Bush era tax cuts, unemployment benefits and other issues. House and Senate members will meet today to discuss the plan and a timetable for action.

The compromise is reported to include the following:

* Reinstate and extend the estate tax at a 35 percent rate and an exemption level of $5 million for two years

* Cut Social Security payroll taxes from 6.2 to 4.2 percent for one year

* Extend the 2001 and 2003 Bush tax cuts for all income levels for two years

* Extend emergency unemployment benefits for 13 months

* Allow businesses to write off the full cost of capital investments for one year

* Extend through 2011 the alternative minimum tax (AMT) patch (to prevent millions from having to pay the AMT)

* Extend some of the Obama economic stimulus law proposals

To see the President's remarks go to :

http://www.whitehouse.gov/the-press-office/2010/12/06/statement-president-tax-cuts-and-unemployment-benefits

Medicare Finalizes Visitation Rights Rules

2010-11-23T11:32:00.000-05:00

Medicare issued new rules for hospitals that protect patients’ right to choose their own visitors during a hospital stay, including a visitor who is a same-sex domestic partner.

“Basic human rights—such as your ability to choose your own support system in a time of need—must not be checked at the door of America’s hospitals,” said HHS Secretary Kathleen Sebelius. “Today’s rules help give ‘full and equal’ rights to all of us to choose whom we want by our bedside when we are sick, and override any objection by a hospital or staffer who may disagree with us for any non-clinical reason.”

The new rules require hospital to respect the right of all patients to choose who may visit them when they are an inpatient.

The rules require hospitals to have written policies and procedures detailing patients’ visitation rights, as well as the circumstances under which the hospitals may restrict patient access to visitors based on reasonable clinical needs.

A key provision of the rules specifies that all visitors chosen by the patient (or his or her representative) must be able to enjoy “full and equal” visitation privileges consistent with the wishes of the patient (or his or her representative).

Among other things, the rules impose new requirements on hospitals to explain to all patients their right to choose who may visit them during their inpatient stay, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.

“These rules put non-clinical decisions about who can visit a patient out of the hands of those who deliver care and into the hands of those who receive it,” said CMS Administrator Donald Berwick, MD, MPP.

For more information read the Medicare news release:

Medicare finalizes new rules to require equal visitation rights for all hospital patients

Medicare Open Enrollment Begins

2010-11-18T14:43:00.003-05:00

All of the changes to Medicare mean that open-enrollment is more important than ever. Most people won't see a cost increase, but high-income folks will. Some people will need to make changes, but many will not have to. It is vital that you review your plan to determine if you do need to make any changes.

Because of the new Health Care law, many benefits and plan changes will take place. Many insurers are eliminating or consolidating Medicare-related plans, so an estimated one million Medicare recipients will have to choose new coverage.

For those with traditional Medicare, the biggest change is an expansion of benefits. Starting Jan. 1, 2011, Medicare will completely cover the cost of many preventive services, including mammograms, Pap tests and screenings for prostrate and colorectal cancer, as well as one annual 'wellness' examination.

For more information see:

http://www.kaiserhealthnews.org/Daily-Reports/2010/November/15/Medicare-open-enrollment-issues.aspx

New Mass. Homestead Law awaits Gov's Signature

2010-11-18T11:16:00.000-05:00

The new and improved Homestead Law in Massachusetts is awaiting the Governor's signature after passage by the Legislature. Lowell Register of Deeds, Richard Howe, has provided a great summary of the law and a link to the entire text. Click on the link below to go to the Lowell Registry Blog Article.

LowellDeeds: Big changes coming to Homestead Law

Talking with Depression-Era Parents about Money - NYTimes.com

2010-11-15T15:35:00.001-05:00

Here are some great tips on talking with your parents about money. (And your parents don't have to be "depression-era" in order to fear this talk - besides that would make you and me too old!).

It's necessary to discuss many issues with your parents as they age. You'll have to have the same talk with your own kids someday. Families can make these sorts of things more easy on each other if they just openly communicate about these "tough-to-discuss" issues.

Talking with Depression-Era Parents about Money - NYTimes.com

2011 Medicare Rates Announced

2010-11-10T16:17:00.000-05:00

The Center for Medicare and Medicaid Services (CMS) has announced the 2011 rates for Medicare. The basic premium for Medicare Part B will be $115.40 a month, up from $110.50 in 2010 (a 4.4 % increase). But because there will be no cost of living benefit increase for Social Security recipients for 2011, most beneficiaries will be exempted from paying this increase and will instead pay the same $96.40 premium they have paid since 2008.

A provision in the Medicare law prohibits Part B premiums from rising more than that year's cost of living increase in Social Security. Those already on Social Security and Medicare will not have an increase in their premiums. New enrollees, and those who don’t have part B withheld from their checks, will have to pay the new higher premium. Also, those high-income people who pay a premium surcharge are not exempt from the increase.

Medicare beneficiaries will be subject to new deductibles and co-payments outlined below. Medicare Part B covers physician services as well as qualifying out-patient hospital care, durable medical equipment, and certain home health services, among other services.

Medicare figures for 2011:
• Basic Part B premium: $115.40/month
• Part B deductible: $162 (was $155)
• Part A deductible: $1,132 (was $1,100)
• Co-payment for hospital stay days 61-90: $283/day (was $275)
• Co-payment for hospital stay days 91 and beyond: $566/day (was $550)
• Skilled nursing facility co-payment, days 21-100: $141.50/day (was $137.50)

High-Income Premium Surcharges
• Individuals between $85,000 and $107,000 and married couples between $170,000 and $214,000 will pay a monthly premium of $161.50.
• Individuals between $107,000 and $160,000 and married couples between $214,000 and $320,000 will pay a monthly premium of $230.70.
• Individuals between $160,000 and $214,000 and married couples between $320,000 and $428,000 will pay a monthly premium of $299.90.
• Individuals with annual incomes of $214,000 or more and married couples with annual incomes of $428,000 or more will pay a monthly premium of $369.10.

The Social Security Administration uses income from two years ago to determine Part B premiums. So the income reported on a 2009 tax return is used to determine whether the beneficiary is subject to the Surcharge. If a beneficiary's income decreased significantly in the past two years, she may request that information from more recent years be used to calculate the premium.

For more information on Medicare and the 2011 increases go to www.cms.gov

Job Posting - CEO - Region 10 Community Support Services

2010-10-15T15:08:00.002-05:00

I am on the Board of Directors of Region 10 (a not-for-profit agency that serves individuals with developmental disabilities). We are looking for a new CEO to move the agency to a higher level. Here is our job posting.

Chief Executive Officer (CEO)
Region 10 Community Support Services, Inc
Atkinson, NH
The Board of Directors of Region 10 Community Support Services, Inc. of Atkinson, NH invites applications and nominations for the position of Chief Executive Officer (CEO) to lead the expansion efforts of this dynamic organization. Candidates must be creative, entrepreneurial, visionaries with demonstrated and measurable success.

About Region 10:
Established in 1979, Region 10 Community Support Services, Inc. is one of 10 Area Agencies designated by the State of NH to coordinate and facilitate supports and services for individuals with developmental disabilities and acquired brain disorders. The Agency supports the communities of Atkinson, Chester, Danville, Derry, Hampstead, Newton, Pelham, Plaistow, Salem, Sandown, and Windham, NH.

Region 10's mission is to support people who have developmental disabilities or acquired brain disorders, in partnership with caregivers, to enhance their independence and personal growth while fostering meaningful relationships and involvement within their communities.

About the Position:
The Chief Executive Officer (CEO) of Region 10 Community Support Services, Inc. is responsible for all strategic, fiduciary, and service related functions of the agency. Reporting to the Board of Directors, the CEO is the primary voice, information source, and leadership of the organization. The CEO assures the sound management of all aspects of the agency, and provides leadership relative to service delivery and agency growth/development.

Region 10 offers a highly competitive salary and benefits package commensurate with experience.

Requirements:
• A master's degree in Business, Education, Human Services, Social Work, or Psychology
Five (5) years of post-master's degree professional experience
Employment history in developmental services or community development
• Experience in non-profit administration, budgeting, and board relations with a demonstrated entrepreneurial spirit

Application Process:
Qualified candidates may submit a resume, letter of intent, and three (3) letters of professional reference to:
CEO Search
Region 10 Board of Directors
PO Box 56
Atkinson, NH 03811

Applications deadline is Monday, November 22, 2010 for consideration.
Region 10 is an Equal Opportunity Employer

Lewy Body Dementia Affects 1.3 Million But Is Often Unknown to Doctors

2010-10-08T14:33:00.001-05:00

Lewy body dementia (LBD) is the second most common form of Dementia after Alzheimer’s Disease. It affects an estimated 1.3 million individuals and their families in the United States, but because LBD symptoms can closely resemble other more commonly known diseases like Alzheimer's and Parkinson's, it is often under-diagnosed and there is a good chance your primary care physician doesn’t even know about it.

Despite the disease's prevalence, people with LBD have to see about three doctors before a correct diagnosis is made. In order to raise awareness The Lewy Body Dementia Association is leading the first national LBD awareness campaign, A Week To Remember, from October 10 to 16, 2010.

Lewy body dementia is a degenerative brain disease that has been described by caregivers as Alzheimer's, Parkinson's and a psychiatric disorder all rolled into one. Early and accurate diagnosis of LBD is of critical importance because people with LBD respond more poorly to certain medications for behavior and movement than people with Alzheimer's or Parkinson's, sometimes with dangerous or permanent side effects.

Recognition of LBD as a common form of dementia grew to prominence among neurologists only within the past five years, and general awareness of LBD as a disease has yet to make its way to primary care physicians. "Given the growing population of older Americans, at some point in your life LBD will likely affect someone you know," said Angela Herron, President of LBDAs Board of Directors. "The general public, including many primary care doctors and nurses, have never heard of LBD. So in addition to trying to manage a very difficult disease, LBD families find themselves in the unanticipated role of educator and advocate."

LBD symptoms include dementia plus any combination of: unpredictable levels of cognitive abilities, attention and alertness, changes in movement or gait, visual hallucinations, a sleep disorder where people physically act out their dreams, and severe medication sensitivities. The severe medication sensitivities in LBD make it a very difficult disease to treat without worsening already problematic LBD symptoms. At the same time, people with LBD may respond more favorably to certain dementia medications than people with Alzheimer's.

To learn more about LBD visit www.lbda.org.

Source info - LBDA.org and Elderlawanswers.com

Stock in Demutualized Insurance Companies is a Pain to Sell

2010-09-30T10:45:00.002-05:00

The demutualization of several major insurance companies has created headaches for many elders, their families, and most of all the executors of their estates. Most older life insurance companies were “Mutual Insurance” companies. That means that there were no stockholders of the company, as it was owned by everyone who owned a policy. The policy holders shared in the profits of the company in the form of dividends.

But, this form of business hampered the ability of the insurance companies to grow and to obtain capital for growth and acquisitions. With changes in the laws that allowed insurance companies to offer other services (and banks to offer insurance), many companies realized that they needed more capital to compete and a surge of demutualization began. Prudential, MetLife, John Hancock, Sun Life, and many others demutualized. Other companies, such as Northwestern Mutual, Massachusetts Mutual, New York Life, and Pacific Life, decided to remain as Mutual Insurance Companies.

There are various studies on the benefits of demutualization. Some show it has been good business for the companies that did it. Others show detriment to policy holders as they no longer receive dividends and have lost control over the company. Those companies that did not demutualize still pay dividends to policy holders, but may be losing out on some business options and profit as the mutual insurance company model does not allow them to engage in certain business nor to realize the full value of many of their assets.

Whatever the real result to the businesses and the policy holders, a main problem is that the companies that demutualized gave shares of stock to all of their policy holders. This has been a real pain to deal with for many people. Most of the people who got shares of stock didn’t know what to do with them and just held on to them. In many cases they have as little as 10 or 20 shares and at most a couple of hundred shares. These vary in value from a few hundred dollars to several thousand.

The problem comes in when these shares need to be cashed in. Most are held in an account managed by one of the big New York banks such as Bank of New York – Mellon. The paperwork required (including Medallion Signature Guarantees) is daunting and complex. Often the forms will be filled out incorrectly and the bank will return them (after several weeks) with a request to correct them, thus delaying the liquidation of the shares. Furthermore, there seems to be no way to just liquidate shares for a share-holder who has died. Ownership must first be transferred from the name of the decedent into the name of the estate, then the shares need to be sold by the executor of the estate. This requires all of the paperwork (and the signature guarantee) to be completed and sent to New York twice.

I sometimes think (although without any proof) that the stock holding companies make it difficult on purpose, although I’m not sure how they may profit off of any delays that they cause. I once completed all of the forms for an Estate where I was executor and the bank returned them to me saying the “Request for Taxpayer ID Number” [form W-9] that I used was obsolete and please complete another on the form they sent me. It was the exact same form with the same release date as the one I had used. This was a delay for no good reason.

In any case, the system is too complex and difficult for the amounts of money in consideration. Those policyholders who received shares of stock and didn’t know what to do with them are burdened with this new issue of dealing with the stock, or leaving it up to their heirs to deal with it. This was no favor to those involved and should be addressed by those companies that demutualized.

And, this doesn’t even take into consideration the tax consequences for each individual. The IRS originally held that the cost basis for these shares is zero, so the sale of the shares (by the original policy holder) created a fully taxable gain. Later, the tax court ruled that this is not proper and a basis can be assigned to the stock, but figuring that out is almost as tough as dealing with the New York stock-holding banks. Maybe Tax Girl www.taxgirl.com has an answer to the basis question, I don’t.

New Hampshire NAELA Chapter

2010-09-22T08:09:00.002-05:00

The New Hampshire Chapter of the National Academy of Elder Law Attorneys (NAELA) is meeting today. It's kind of a sad day for me as this will be my last function as President of the Chapter. Today we vote on a new board for the upcoming year (we run on a "school year" calendar.) I have really enjoyed being President of the Chapter, but the time went swiftly and I couldn't accomplish as much as I had hoped I would.

I am looking forward to the future though, and plan to work on some committees where I can help accomplish the goals I didn't meet as President. For those lawyers who practice Elder Law and are not part of NAELA, I highly suggest that you join. But, more than that, you have to participate. You must join committees and task forces and put some effort into helping the organization. That way your goals and the goals of the organization can combine and both be met by your own efforts. You will meet some great people, get to know them well, and probably enhance your own personal reputation and business prospects, all by doing some good for others.

For individuals looking for Elder Law advice: seek out an attorney who is a member of NAELA and especially one who joins committees and boards and participates. That attorney will probably know more about the issues of Elder Law (or know who to ask) than others.

Thank you to my fellow members of NH-NAELA for allowing me to serve as President of the Chapter.

Organize Now (or later)!

2010-08-24T11:46:00.002-05:00

I read this on the NonBillable Hour blog, and that blogger got it from a blog called UnClutterer:

"Everyone gets organized at some point, they just might not be around for it."

This really rings true for me with my business. I often advise clients to get organized in their personal, financial and "stuff" areas, as a favor to their heirs (children). Cleaning up the mess after someone dies is really difficult, physically and emotionally. On the other hand, I've heard people say, "my children will have to clean up that mess, not me." So, I guess it's up to you, just how you want it to happen.

http://unclutterer.com

http://thenonbillablehour.typepad.com/nonbillable_hour

Scandal Names

2010-07-29T10:05:00.003-05:00

This isn't a legal post, just a personal annoyance with the Media. Every time there is some sort of government or political scandal these days, the news people take some name or fact from the scandal and add "gate" to the end of the name. This is, of course, a play on the Watergate scandal involving President Richard Nixon, that was named after the Watergate Hotel at which the burglary took place that set off the scandal.

That happened almost 40 years ago. But, the news media cannot be bothered to think up new and clever names for scandals; all they can do is append "gate" to something. This gets boring and annoying. I would like to see the news media work a little harder and be more creative.

The latest I read was about Senator Kerry and his boat in Rhode Island. Someone called it "Yachtgate." I guess the "gate" trick is a shorthand for a scandal and the prefix gives you a little idea of what it's about. But I still say it's unimaginative and lazy. Common news media, get creative!

http://www.taxgirl.com/yachtgate-is-over/

New CMS head gets recess appointment

2010-07-08T15:30:00.002-05:00

On Wednesday, July 7, President Obama appointed Dr. Donald M. Berwick as administrator of the Centers for Medicare & Medicaid Services (CMS). Dr. Berwick has served as a pediatrician at Harvard Community Health Plan, and has taught health policy as a professor at Harvard Medical School and the Harvard School of Public Health. As president and co-founder of the Institute for Healthcare Improvements (IHI), Dr. Berwick worked to reduce hospital-acquired infections and deaths, and produced standards to improve health care quality.

Dr. Berwick’s term will last only through 2011 due to his appointment during Congressional recess, which bypassed the Senate confirmation process. The post had been vacant since October 2006.

CMS, which oversees the Medicare and Medicaid programs, plays a key role in health reform implementation.

Banks and others "practicing" law

2010-07-08T10:33:00.002-05:00

It's great when more service providers are willing to offer help to seniors and their families. But, you should see an Elder Law Attorney when you have legal questions and issues about aging. A banker cannot legally prepare a Power of Attorney, Will, or Trust for you, as they are not licensed to practice law. The bank may have a legal department, but unless you see the attorney personally, it's hard to know if you are getting the right representation. See your own lawyer!

Family Value: When Bankers Tackle Elder Care - WSJ.com#printMode

Medicare Proposes New Rules to Ensure Equal Visitation Rights for All Hospital Patients

2010-07-08T10:23:00.000-05:00

For years, "families" have struggled with visitation "rights" in a hospital. Facilities have differing rules on visitors. The general rule is that a person has a right to see whoever they want and the hospital cannot deny it, but this is hard to enforce when the person is not capable. Most hospitals default to traditional family relationships, so "boyfriends," "girlfriends," and other social (but not "blood" or "marriage") relations are sometimes denied access to a patient. A new rule is being designed to fix this problem. See the DHHS website for more information.

Medicare Proposes New Rules to Ensure Equal Visitation Rights for All Hospital Patients

New Approach Reduces Unwanted Medical Treatments at End of Life - ElderLawAnswers Articles

2010-07-07T09:18:00.000-05:00

See the linked article about new care planning that seeks to reduce unnecessary, expensive and painful care and increases thoughtful goal-oriented end-of-life care.

New Approach Reduces Unwanted Medical Treatments at End of Life - ElderLawAnswers Articles

Another lawyer's take on Reverse Mortgages

2010-07-06T09:01:00.000-05:00

Reverse Mortgages getting more competitive IF you are a savvy shopper : New Jersey Estate Planning & Elder Law Blog

Complex questions on reverse mortgages Realty Q&A - MarketWatch

2010-07-02T08:16:00.000-05:00

Here is an article on Reverse Mortgages. It really only points out the issues and advises consulting an Elder Law Attorney. Complex questions on reverse mortgages Realty Q&A - MarketWatch

This is good advice. Reverse mortgages have their place and can be a great tool when necessary. Alternatively, they are often pushed on people who don't really need or want them, sometimes along with bad investment advice (by disreputable brokers and advisors - good advisors would not do that). You need to understand your situation and your goals and get good advice to know if a reverse mortgage is right for you. There are ways to plan for Medicaid, but they must also be done in consultation with an Elder Law Attorney who can advise you on the rules and issues facing you.

Online Frauds Now Targeting Lawyers

2010-07-01T09:07:00.003-05:00

Lawyers need to beware of a new family-law twist on the ubiquitous email-check fraud scam. Reports indicate that numerous lawyers have been targeted by emailers who,assuming a false identity, say they need a lawyer to help them collect payments owed under a divorce agreement.

Typically the emailer claims to be an ex-wife owed money by the ex-husband under the agreement. When the lawyer takes the bait and agrees to the engagement, the “ex-husband” – actually the same scammer – sends the lawyer a “cashier’s check” for deposit into the lawyer’s account, with instructions to wire the collected funds to the ex-wife’s account. By the time the lawyer discovers the cashier’s check was counterfeit, it’s too late -- the unknown scam-artist is long gone with the wired funds from the lawyer’s account. These types of fraud activities are particularly busy before a major holiday.

There are many of these types of frauds that target lawyers, business people, and individuals. You should always be wary when someone you don't know wants you to accept a check and then immediately send funds to some far-away place. The check may be bogus but your bank will credit your account (pending clearing) and you will be able to send the funds out. When the check is finally bounced by the system, your account will be over-drawn and you will be in trouble with your own bank.

These scams always prey on your own greed. You will get a part of the money they are sending and you have a check in hand. Few people give away money for nothing and quick pay-offs are rare. Don't fall for these scams. Be on high alert at all times when online.

NAELA Members lobby congress

2010-06-25T14:43:00.002-05:00

On June 15, 2010, more than 20 NAELA members from 11 states travelled to Capitol Hill in Washington, D.C. to meet with U.S. Representatives and Senators offices to discuss issues of importance to older adults.

Together, participants visited 36 offices in order to highlight the importance of issues such as appropriations for the Elder Justice Act, the need for an extension of an increased federal match for Medicaid, and patient self-determination (advance care planning.

This was the old-fashioned kind of lobbying in which concerned citizens (or in this case the lawyers who work for elder citizens) directly spoke with their representatives about their issues of concern.

Everyone could participate in this kind of lobbying just by calling or writing their member of Congress. If you have issues you would like to advocate, and don't want to do so yourself, consider contact a NAELA member and asking them to bring the subject up at the nest "Hill Day."

Who will make your life-or-death decision? - CNN.com

2010-06-16T15:36:00.000-05:00

Who will make your life-or-death decision? - CNN.com

This CNN article tries to explain the difference between a living Will and a Health Care Proxy (or Power of Attorney for Health Care.) The most telling point is that estimates are that only about 30% of American's have any sort of advanced directive or proxy. This is one of the most vital planning tools you can have. You must have one in place, and you must update it if your circumstances change. The article is about Gary Coleman and his ex-wife was named as his agent. She decided to withhold treatment ("pull the plug") when he had only been in a coma for one day. She had that authority and the doctors followed her orders. You need to understand what your documents say and what (if anything) state law says about divorcing. Some state laws negate any references to an ex-spouse, while some do not.

See your Estate Planning/Elder Law Attorney right away if you do not have a Health Care Proxy.

Pre-Paid Funerals

2010-05-26T13:54:00.003-05:00

I often recommend pre-paid funerals for many of my clients. Pre-planning and paying can save money, it can save the family the stress of decisions at a hard time, and it can save a family member from having to pay for a funeral. However, there are some problems and issues with pre-paid funerals, and consumers need to understand the issues and the risks.

The Wall Street Journal recently ran a scathing article on the industry. When Prepaid Funeral Plans Are Wealth Killers It appears there are dishonest sellers of certain plans that cost too much and don't make sense. But, just because there are bad people in the industry doesn't mean it's a bad idea all together.

The key to planning ahead is knowing what you want, understanding what you are offered, and dealing with a reputable and known merchant. I don't know anything about the national companies mentioned in the WSJ article, but I do know that our local funeral directors are good members of the business community who count on repeat business from families and depend on their good names. I doubt they are out to cheat or trick anyone. That would only doom their business.

The WSJ article also decries the lack of laws or regulations. It is true that New Hampshire has few laws designed to protect people from the issues associated with pre-need funeral plans, but Massachusetts has recently enacted strict new laws and rules that protect consumers' deposits with funeral homes in the state.

Keep in mind that you need to understand your own wishes and requirements. If you plan to retire and move to Florida (and thus die there), then it makes little sense to buy a pre-paid funeral with a local funeral home in Massachusetts. But, if you plan to live (and die) here, then your local funeral home is the right place to start. If you have any questions or issues, before you sign any contracts or pay any money, see your local Elder Law Attorney for advice.

Attorney Adamsky Attends NAELA Conference in Disney World

2010-05-17T15:25:00.013-05:00

Attorney Adamsky recently attended the National Academy of Elder Law Attorneys annual meeting and conference in Walt Disney World, Florida. At the conference he attended seminars on Elder Law, Special Needs Law and Disability Planning. Lectures were given by prominent attorneys such as Professor Jeff Pennell of Emory University, who spoke on trust provisions for tax purposes.

Attorney Adamsky also attended sessions on: Special Needs Trusts and planning for care needs beyond Trusts; Blended Families and Medicaid Planning; Understanding and Reducing Fraud against Elders; and, Medical Decision-Making for those with Disabilities including ethical issues for the incapacitated. Attorney Adamsky also attended a training session for local chapter leaders as he is President of the New Hampshire Chapter of NAELA.

New Officers and Directors were elected at the Annual Meeting and awards were presented to a variety of Elder Law Attorneys and other distinguished recipients, including John Laboe of Concord, New Hampshire who was named the NH Chapter Member of the Year. (for more information see http://www.laboelaw.com/).

In the afternoons and evenings Attorney Adamsky enjoyed the attractions available to visitors of Walt Disney World. He enjoyed the rides and shows at the parks, including EPCOT and the Magic Kingdom, and had many wonderful meals in the restaurants. The meeting took place at the Yacht Club/Beach Club resort which was a wonderful venue for the meeting. For more information on NAELA visit http://www.naela.org/.

Social Security Adds New Online Medicare Application - ElderLawAnswers Articles

2010-04-23T11:29:00.001-05:00

For many people, age 65 doesn't mean they retire. Those of a certain age cannot even apply for Social Security at age 65. But, you still need to apply for Medicare at 65. So, the SSA has a new online application procedure.

Read the Elder Law Answers article linked to below for more details.

Social Security Adds New Online Medicare Application - ElderLawAnswers Articles

Or go to the Social Security Website at: www.socialsecurity.gov/medicareonly/

Concord Hymn

2010-04-13T10:53:00.002-05:00

By the rude bridge that arched the flood,
Their flag to April's breeze unfurled,
Here once the embattled farmers stood
And fired the shot heard round the world.
The foe long since in silence slept;
Alike the conqueror silent sleeps;
And Time the ruined bridge has swept
Down the dark stream which seaward creeps.
On this green bank, by this soft stream,
We set today a votive stone;
That memory may their deed redeem,
When, like our sires, our sons are gone.
Spirit, that made those heroes dare
To die, and leave their children free,
Bid Time and Nature gently spare
The shaft we raise to them and thee.

Ralph Waldo Emerson

April 19th is Patriots' Day in Massachusetts (I note that some calendars say 9/11 is now Patriots' Day, but that's something altogether different). The April Patriots' Day holiday celebrates the Battles of Lexington and Concord that were the unofficial start of the American Revolution (the "Shot Heard Round the World." and the "Midnight Ride of Paul Revere.") This poem by Emerson is about the Old North Bridge over the Concord River in Concord, Mass, and the monument set there. You can still see it today. The bridge has been restored to look like it did back in 1775 and the monument is on the other side as you approach. It is a lovely spot and a fitting place to think about the sacrifice of those patriots who fought for liberty (then and now).

WHEN THE YOUNG ARE GROWN

2010-04-06T14:58:00.000-05:00

Once the house was lovely, but it's lonely here to-day,
For time has come an' stained its walls an' called the young away;
An' all that's left for mother an' for me till life is through
Is to sit an' tell each other what the children used to do.

We couldn't keep 'em always an' we knew it from the start;
We knew when they were babies that some day we'd have to part.
But the years go by so swiftly, an' the littlest one has flown,
An' there's only me an' mother now left here to live alone.

Oh, there's just one consolation, as we're sittin' here at night,
They've grown to men an' women, an' we brought 'em up all right;
We've watched 'em as we've loved 'em an' they're splendid, every one,
An' we feel the Lord won't blame us for the way our work was done.

They're clean, an' kind an' honest, an' the world respects 'em, too;
That's the dream of parents always, an' our dreams have all come true.
So although the house is lonely an' sometimes our eyes grow wet,
We are proud of them an' happy an' we've nothing to regret.

Edgar A. Guest - 1922

New Scams on the Elderly - Flood Damage

2010-03-29T12:33:00.002-05:00

Boston Area Detectives are reporting several crimes against the elderly, and remind all residents to use care in allowing unsolicited workers in their homes. They recommend calling the local police to verify the identity of anyone seeking access to their homes.

In one incident, 3 white males entered a home stating they were from the Water Department and had to check the basement for possible flooding. Once in the home the suspects separated, and $800 in cash was taken from a bedroom drawer.

In another incident, a white male entered a home wearing an ID tag that read: “Water Disaster Department”. The elderly couple were led to the basement and told to run their washing machine. While in the basement, a second suspect had time to remove cash from two dresser drawers and also pried open a medium size closet safe.

For the most part, government employees are not checking basements for flooding. If they are official workers, they will have uniforms and Identification, as well as a properly labeled vehicle. If you did not call for service, do not let them in. Call 911 and ask for the police to respond.

Halcyon Days - By Walt Whitman

2010-03-16T11:15:00.002-05:00

Not from successful love alone,
Nor wealth, nor honor'd middle age, nor victories of politics or war;
But as life wanes, and all the turbulent passions calm,
As gorgeous, vapory, silent hues cover the evening sky,
As softness, fullness, rest, suffuse the frame, like fresher, balmier air,
As the days take on a mellower light, and the apple at last hangs
really finish'd and indolent-ripe on the tree,
Then for the teeming quietest, happiest days of all!
The brooding and blissful halcyon days!

[Whitman realized that aging leads to the best time of life. My grandmother said that her 50's was the best time of her life. She was old enough to be done with the folly of youth, but young enough to enjoy her wisdom and the time she had left. She never mentioned if her 60's 70's and 80's were better than her 50's. I hope they were, and I hope they will be for me. Ed.]

Old Scams Go Around Again

2010-03-09T15:30:00.003-05:00

A grandson calls and says he's in trouble — what do you do? The caller identifies himself as your grandson, who is in jail in Canada and needs money for bail. Of course you will wire him the funds he needs, right? That's what the crooks are counting on. Don't do it! It's a Trick!

Variations on the theme include car or other legal troubles in Canada, saying that authorities won't let them leave the country without the money. The caller asks that money be sent to a friend, through Western Union.

While there is little police can do to help those who have lost money to such crooks, police warn others to be wary of such scams. Investigators say such scams have been used increasingly to target elderly people, by researching their would-be victims' personal information before making contact.

A Web site, phonebusters.com, which was set up by a Canadian law enforcement task force, contains a long list of such scams. The Canadian scam task force can also be reached by phone at 1-888-495-8501.

Email variations are going around too. The email comes from a recognized address (a friend or relative) and says the person is stuck in England (or France, etc.) after being robbed and they need money. Do not click on any links or respond to such an email.

Tip-offs to scams include poor English in an email, or failure to identify the caller properly (Caller: "It's your favorite grandson." Grandmother: "Oh, Bobby?" Caller: "Yes, Bobby." - you gave him the name!!!).

You could verify identities of callers with family secrets or inside jokes or other things that a stranger would not know. But, for the most part a family member will never call out of the blue with a need for money in a far off place. Do not send money to any unknown place, person or address. Call another family member to discuss and verify the facts before doing anything.

Elder Law Answers - White Paper on Computer Estate Planning

2010-03-04T13:48:00.002-05:00

From www.elderlawanswers.com

Many Web sites offer customized, do-it-yourself wills and other estate planning documents. These computer-based services appear to offer a cost-effective and convenient alternative to visiting an estate planning or elder law attorney. But is online estate planning worth the convenience and initial savings? How do the documents created compare to those that a qualified attorney would produce?

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 White Paper that is available for free on ElderLawAnswers Web site.

For the link to the White Paper follow the link below:

http://www.elderlawanswers.com/Resources/Article.asp?ID=8129

Suit Claims LegalZoom's Document Prep Is Unauthorized Practice - News - ABA Journal

2010-02-23T14:15:00.001-05:00

Several plaintiffs in Missouri are seeking class-action status in an effort to sue Legal Zoom. They claim that the services they received were legal in nature and should have been performed by an attorney licensed to practice law in the jurisdiction. Since they were not, they want a return of their fees and costs (and the triple damages allowed by the consumer protection law of the State). The lawsuit cites a North Carolina matter that held LegalZoom had engaged in the unauthorized practice of law.

It is not clear what the full motivation is behind this lawsuit. Many attorneys resent online services that offer document preparation for very low prices. The lawsuit may be a way for attorneys to get back at Legal Zoom for "stealing" their business.

However, it is rarely a good idea to attack a low-cost provider in an effort to boost your own business. Local stores are generally advised not to try to beat WalMart on prices - they cannot win that fight. Instead, small businesses can beat low prices with exceptional service and high quality goods.

That is what a licensed attorney can do for you, that an online service cannot. You can get a document prepared for a small fee online, but is it really the document you need? Is there something else you may need that you don't even know about? Only a licensed attorney can give you legal advice on your particular situation. Document preparation is easy, giving good legal advice is not.

Here is the ABA Journal article about the suit with links to the complaint itself.

Suit Claims LegalZoom's Document Prep Is Unauthorized Practice - News - ABA Journal

[We are not commenting on the merits of the lawsuit, nor criticizing Legal Zoom.]

Alzheimer's Seminar in Bedford, NH

2010-02-01T10:41:00.002-05:00

The Alzheimer's Association of Massachusetts and New Hampshire regularly holds educational programs. On Tuesday, February 23, 2010, at 5:30PM, they will hold a program entitled: "Knowing the Difference: Senior Moments vs. Warning Signs for Alzheimer's Disease." Topics will include dementia symptoms, the different forms of dementia, the diagnostic process, current treatment options and the benefits of accessing support and education. You must call 603-606-6590 to pre-register for the program. The program will be held at 30 Colby Court, in Bedford, NH. For more information go to www.alz.org/MANH.

Roth IRA - To Convert or Not, That is the Question.

2010-01-18T14:16:00.004-05:00

Most of the time, high income individuals are not allowed to convert a traditional IRA to a Roth IRA, but an exception applies to most everyone in 2010. Roth IRAs grow tax free and withdrawals are tax free when taken under the rules. You don't get a deduction when you put money in a Roth IRA like you do with a traditional one, but you pay that tax later with a traditional IRA.

Another added twist is that the tax you would pay on conversion from traditional to Roth can now be spread out over the next two tax years (2011 and 2012). You will have to pay the tax on conversion (now or over the next two years), so you have to figure out whether it is right for you. Many banks and funds will be touting conversion as they will get new customers, new investments and new fees for those services.

Financial articles on the pros and cons of Roth IRA conversions are all over the place. The best advice is to think carefully, review all the consequences and only convert if it is right for you. The advice of a professional financial advisor is highly recommended.

Here are some links to a few helpful articles

•Kiplingers: http://www.kiplinger.com/columns/ask/archive/2009/q0911.htm

•MarketWatch: http://www.marketwatch.com/story/avoid-these-roth-ira-conversion-mistakes-2009-12-31

•retirementrevised: http://retirementrevised.com/money/should-you-join-the-roth-conversion-parade

•MoneyWatch: http://moneywatch.bnet.com/retirement-planning/blog/retirement-roadmap/dont-rush-into-roth-ira-conversions/2594

•The New York Times: http://www.nytimes.com/2009/10/15/your-money/15ROTH.html

Elderly Invisible to Justice System?

2010-01-15T10:58:00.002-05:00

An elderly woman spent several days in jail for a suspended license (which wasn't correct it had been reinstated) and even though she could have been released without bail. The justice system simply didn't see her. This is an example of the disdain with which the elderly are often treated in our society. We should all try to perceive everyone as an individual and not as an "old person" or a "disabled person" or whatever; everyone is a human being who deserves respect and attention to their needs.

From an article in the ABA Journal, see: http://www.abajournal.com/weekly/article/invisible_woman_78_jailed_2_weeks_spotlights_flaws_in_so-called_system_of_j

No changes in Estate Tax Status

2009-12-29T09:26:00.003-05:00

No news from the Senate on the Estate Tax issue. I guess they will take it up next year and be faced with the problem of people who die after 1/1/10 and before they change the law.

Here are some other's opinions:

Tax Girl:

http://www.taxgirl.com/federal-estate-tax-update/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+taxgirlfeed+%28taxgirl%29&utm_content=Google+Feedfetcher.

And from a lawyer on an internet discussion group:

"Dear Client, Please don't die in 2010.

Congress has apparently taken no action to alter or amend the
consequences of the Economic Growth and Tax Relief Reconciliation Act of
2001(EGTRRA). Therefore the estate tax is repealed as to decedents dying after
midnight December 31, 2009 and for the year 2010. Modified carry over basis rules, IRS sec. 1022, will now be applicable, rendering reserved life estates not
eligible for step up basis adjustments and requiring a return, yet to be
developed, under IRS sec. 6018, be filed by an executor to report basis
information. These changes will all expire after midnight on December 31, 2010, at which point the old estate tax law with the $1 million exemption under The Taxpayer Relef Act of 1997 will become law. Many of my clients with modest estates will be harmed by these provisions."

Estate Tax - Repeal and Retroactive Reinstatement Now Seem Likely

2009-12-17T10:28:00.000-05:00

Well, the House Passed an Estate Tax measure to deal with the issue of the impending end of the Estate Tax (for one year!). But, the Senate hasn't acted yet, and they only have 15 days left. Some reports said the Senate would attach the issue to a spending bill. Now that appears unlikely. No one really knows what will happen. The IRS isn't ready for this, and everyone's Estate Tax Planning will be up in the air for the foreseeable future! Thanks a lot Members of Congress.

Here's a blog entry about it from another Lawyer.

Estate Tax - Repeal and Retroactive Reinstatement Now Seem Likely

Bank refuses to honor POA - loses lawsuit

2009-12-07T15:02:00.001-05:00

A durable power of attorney (POA) allows the person creating the document, called the "principal," to name a trusted agent who can act on his behalf. Because of the risk of abuse, many banks will scrutinize a POA carefully before allowing the agent to act on the principal's behalf, and often a bank will refuse to honor a POA. In a recent Florida case, Bank of America rebuffed an agent's request that funds be transferred from the principal's account. The agent fought back in court and just won a $64,000 judgment against the bank.

Clarence Smith, Sr., named his son, Clarence Smith, Jr., as his agent under a POA. When his father no longer wanted to manage his own finances, he asked Clarence Jr. to step in as his agent. Clarence Jr. reviewed his father's account activity and became suspicious about some withdrawals from a bank account that Clarence Sr. owned jointly with a friend from his retirement community.

Acting as his father's agent under the POA, Clarence Jr., asked Bank of America to transfer $65,000 from the account into a new account that listed only his father as the owner. Before doing so, Bank of America contacted the other person named on the account. When she told the bank that she did not want the funds withdrawn and also accused Clarence Jr. of stealing his father's money, Bank of America refused to honor Clarence Jr.'s request. The other account owner then withdrew all of the funds from the account and placed them into her own account, effectively preventing Clarence Sr. from accessing his own money. Clarence Sr. died several weeks later.

Clarence Jr. sued Bank of America under a Florida law that imposes penalties on financial institutions that refuse to honor reasonable requests from agents named in properly executed POAs. In November 2009, after a week-long trial, a Florida jury returned a verdict against the bank and awarded $64,142 to Clarence Sr.'s estate. The jury found that Bank of America had not acted reasonably when it rejected Clarence Jr.'s request, even though the joint owner of the bank account had not agreed to the release of the funds.

Bank of America plans to appeal. "We believe that neither the facts nor the law support the verdict," said spokeswoman Shirley Norton.

While this case clearly illustrates the conflicts that can arise through the use of a POA, it also raises the issue of the proper use of joint bank accounts in estate planning. Under most state laws, when two or more people own "joint" bank accounts, each of them has the right to the entire account, no matter whose money is actually in the account. While joint accounts can often be useful, sometimes, as in this case, joint owners or their agents can disagree about the use of funds in the accounts. When that happens, the party who makes it to the bank first often wins. A qualified elder law attorney can explain the pros and cons of joint ownership, can draft an effective POA, and can assist family members when disputes arise.

[Source - www.elderlawanswers.com ]

Dealing with Gifts to Children in your Estate Plan

2009-12-03T09:28:00.002-05:00

Most parents do not want their children fighting after their passing (although some parents seem to do things to incite their children). So, when planning their estates, parents should strive for harmony and use certain techniques to avoid fights. In some families, with lingering animosity from earlier disagreements, it may be impossible to avoid a fight. But for most families, a well laid out plan and perhaps a separate written explanation, can go a long way to avoid misunderstandings.

The first key is to provide for open and honest communication. Whatever a parent does with one child, or tells to one child, should be told to the others. The child who doesn’t understand why something happened is often the one who starts a fight. This is especially true when it comes to gifts or loans to children. If you give money to one of your children, you need to make clear whether you intend to be paid back, or whether the gifts should be deducted from that child’s inheritance. If you don’t equalize what your children receive, then you must explain to them why you did not. They don’t necessarily deserve an equal share of your estate, but that’s the expected choice for most families, so any deviation from that needs to be explained.

If you make a loan to your child, and you intend the child to pay you back, then the loan should be in writing with the details spelled out. If you intend it to be a gift, then you should say so. You should also specify in your Will that any gifts made to children during life, should not reduce the share they get at death (or perhaps that it should reduce it, but that’s a little more difficult to deal with).
You could specify in your Will that any written loans are meant to be paid back or deducted from an estate share, and any verbal loans are to be treated as gifts that do not change the inherited shares.

Whatever you do, you must make it clear to your children. If you give an item to one child, let the others know about it, or put something in writing like, “On, July 12, 2009, I gave my emerald ring to Susan as she always loved it best. It is no longer part of my estate and Susan’s share of my estate should not be changed by this gift – signed Mom.” It bears repeating that open and honest communication can avoid a lot of disagreements and fights. In many cases of family disagreement, there would be no fight if only we could figure out what the parent had wanted and why she did what she did. Do not leave your children with a fight on their hands, plan your estate clearly to account for gifts or loans to your children.

In Case of Emergency (ICE)

2009-11-13T09:23:00.001-05:00

Who will speak for you if you become unable to speak for yourself or suffer a medical emergency? Have you planned for that unexpected possibility? You hope it won’t happen, but if it does, you must be ready. You must have the tools on hand to take proper care of you and to ensure that your wishes are followed.

The first and most important planning tool is a Health Care Directive (a “Health Care Proxy” or a “Power of Attorney for Health Care”). This essential legal tool appoints a chosen and trusted person to communicate your wishes and decisions to medical professionals. If you can speak, then your wishes control, but if you cannot then your Health Care Agent will have full legal authority to speak with your doctor and to consent to treatment. Most importantly your Agent can refuse treatments that you may not want, such as feeding tubes or ventilators.

It is vital that you have a discussion with your named Agent, and communicate your health care wishes to him or her. But, there are other ways to make your wishes known, and they can help if your Agent isn’t nearby when an emergency occurs.

One tool is often called a File of Life Kit or sometimes a Vial of Life Kit. This is a listing of personal information, emergency contacts, current medications and conditions and other information an emergency responder might need. It is often kept in the kitchen and sometimes in the refrigerator. It can be in a box, folder or in a prescription medicine vial. Many local senior centers and fire departments offer these kits, sometimes you can get them at local pharmacies or during special promotional events. You can also get the form that you fill out and put in a vile or folder from: www.vialoflife.com. Often the kits come with a magnet to put on the outside of your fridge letting EMTs know the vial is inside.

Another new tool is called ICE (which stands for In Case of Emergency). If you have a cell phone, you can put in an entry under the name ICE. Put the phone number of the person who is your emergency contact, or the number of the person who is your health care agent. EMTs and Police will often check a person’s cell phone to try to contact family. Names without descriptions are not always helpful, but the ICE entry is becoming well known and is something they look for. You can enter more than one contact by using ICE1, ICE2, etc. In many phones, if you put an asterisk (*) in front of ICE, the entry will show up on top of your contact list.

You should also have an emergency wallet card with similar information as in your Vial of Life kit (at least as much as will fit on a wallet sized card.) You can often get this type of card with a Vial of Life Kit, or from your local senior center, fire department or other agencies. You can also find ones online that you can print out. The information should be printed on stiff card-stock so it will survive in your wallet. You should also consider using a bright color so an EMT or Police Officer will notice it in your wallet.

If you plan for an emergency and it never happens, you won’t mind the wasted time. But if you fail to plan and an emergency happens, you may not be able to regret your mistake, but your family will. In Case of an Emergency, get yourself ready.

No Increase in Spousal Allowances under Medicaid for 2010

2009-11-11T12:41:00.003-05:00

The Federal Centers for Medicare and Medicaid Services (CMS) has announced that there will be no change in the Community Spouse Resource Allowance (CSRA) nor the Maximum Monthly Maintenance Needs Allowance (MaxMMNA) for 2010. These amounts are what a community spouse may keep in assets or is allowed to have as income, when the other spouse is in a nursing home on Medicaid. The figures are tied to inflation and adjusted yearly by CMS. Since the government inflation figures were less than zero for this year, there will be no adjustment for next year.

The CSRA for 2010 will be $109,560
The MaxMMNA for 2010 will be $2,739
The Minimum MMNA is adjusted in July each year and it remains $1,821.25 until July 2010.

Jan L. Warner, Elder Law Pioneer and Columnist, Dies at 67

2009-11-02T11:45:00.001-05:00

Jan L. Warner, a nationally syndicated elder law columnist and a founding member of the Carolinas Chapter of the National Academy of Elder Law Attorneys, died of cancer on October 27, 2009, in Columbia, South Carolina. He was 67.
Warner was a founding partner of the Columbia and Rock Hill law firm of ElderLaw Services of South Carolina, P.A./Warner, Payne and Black, L.L.P.
After launching a column on divorce issues called "Flying Solo" with writer Jan Collins 20 years ago, Warner and Collins teamed up again in the late 1990s to start an elder law column called "Next Steps." Both columns are syndicated by United Media (United Features Syndicate). Warner and Collins also wrote a book called Next Steps (Linden, 2009), which was published in August.
"Everything Jan did he did with great zeal," his partner Mitchell Payne said in an article on Warner published in The State, a Columbia newspaper. "He seemed to be able to do everything at once."
"Jan was my law partner for over 10 years, but of much more importance to me he was my friend for almost 20," Payne said. "A friend I lost way too soon, and whose insight and wisdom I will sorely miss. Jan was an eternal optimist, and a never-ending source of new ideas and new perspectives."
"He was wonderful, very funny and very smart," his writing partner Collins told The State. "We got to be good friends."
Warner had recently been appointed an Associate Clinical Professor in the Department of Neuropsychology at the University of South Carolina School of Medicine in Columbia, where he assisted teaching residents and physicians about dealing with elderly and geriatric patients. He was a member of the National Academy of Elder Law Attorneys, the American Bar Association, and the South Carolina Bar Association.

Warner is survived by his wife, Vicki Shuford Warner, and five children.

Memorial messages may be sent to the family at www.bullockfuneralhome.com

To read the article on Warner in The State, click here.

To read The State's obituary for Warner, click here.

New Mass. Guardianship Rules cause confusion

2009-10-29T10:07:00.002-05:00

The new rules on Guardianship in Massachusetts are causing some confusion. They were designed to protect people more than the old laws, but that means they are more complex and less easy to follow. It is likely that some changes will occur over time as technical amendments correct any flaws in the new system.

There is a website dedicated to the new Probate Code in Massachusetts. The blog there discusses many of the good and bad points of the new law.

http://www.massprobatecode.com/

Grandma's Cobwebs

2009-10-22T09:38:00.003-05:00

Here is a link to an e-book about Alzheimer's Disease. It is written for children, but is a great read for all.

http://www.alzheimershope.com/grandmas-cobwebs/flash_book.html

Check out the main website http://www.alzheimershope.com/ for more great information about dealing with the disease that is so hard for so many.

No COLA increase for Social Security in 2010

2009-10-15T12:04:00.002-05:00

It's official. The Social Security Administration has announced that there will be no increase in 2010 SS checks. The annual Cost of Living Adjustment (COLA) is based on inflation and last year the number was negative (deflation). Checks won't go down, but they won't go up either. It is still not clear what will happen if Medicare Part B costs go up. There is a rule that checks cannot go down, so some adjustment may have to be made. Keep your eyes and ears out for more news.

CENTER FOR MEDICARE ADVOCACY LAUNCHES NEW PROJECT

2009-10-14T10:42:00.002-05:00

The Center for Medicare Advocacy is launching a new advocacy and education initiative to eliminate the Medicare "Improvement Standard," which requires that Medicare beneficiaries be able to improve in order to qualify for coverage. The insistence that people must be able to get better unfairly restricts access to Medicare coverage and necessary health care.

Although the Improvement Standard conflicts with the law, it has become deeply ingrained in the system and ardently followed by those who provide care and those who make coverage determinations throughout the health care continuum. Beneficiaries are told Medicare coverage is not available if their underlying condition will not improve, if they have "plateaued," are not likely to improve, or if they need "maintenance care only".

As a result it keeps people with debilitating, chronic conditions from receiving the care they need. This practice persists although the Medicare Act does not require improvement as a precondition to coverage for illness or injury. Further, the federal regulations state that "restoration is not to be the deciding factor" in making Medicare coverage determinations.

Everyday the Improvement Standard blocks access to Medicare and health care for real people. The people most affected by this barrier include people with Multiple Sclerosis, Alzheimer's disease, ALS (Lou Gehrig's disease), spinal cord injuries, diabetes, Parkinson's disease, hypertension, arthritis, heart disease, and stroke. Further, the erroneous standard disproportionately affects people who have low-incomes, as well as African-Americans and Hispanics.

With support from The Atlantic Philanthropies, the Center for Medicare Advocacy will begin a focused, collaborative effort to eliminate the Improvement Standard in Medicare policy and practice. This effort will include advocacy with the administration, litigation if needed, and a multi-faceted education campaign.

Email improvement@medicareadvocacy.org if you or someone you know has had problems obtaining Medicare coverage, necessary health care, or rehabilitative services because the patient was said to be chronic, stable, not likely to improve, or in need of "maintenance services only".
__________________________________________________
The Center for Medicare Advocacy
Advancing Fair Access to Medicare and Health Care
PO Box 350
Willimantic, Connecticut 06226
(860) 456-7790

New Mass. Guardianship Law

2009-10-09T11:09:00.002-05:00

From the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA) newsletter. Guest commentator Attorney Michael Hooker of Northampton, Massachusetts.

Question from Nursing Home Admissions Office: Our lawyers are now telling us that no one who is under Guardianship can be admitted to our nursing home unless the Probate Court has given its permission. What is this about?

Answer: In July, 2009, a sweeping new law regarding guardianships in Massachusetts took effect. The changes were made partly because of abuses highlighted in a Boston Globe spotlight article claiming elder’s rights were being trampled in Probate court in Boston.

The new law, called the Uniform Probate Code, has rigorous requirements to determine whether an elder is unable to make decisions about care, treatment and living situation, and whether someone else should take control of that decision making power. One section of the new law even requires any Guardian to get special permission from the Probate Court BEFORE a person can be admitted to a nursing home:

M.G.L. 190B § 5-309 Powers, Duties, rights and immunities of guardians, limitations ... (g) No guardian shall have the authority to admit an incapacitated person to a nursing facility except upon a specific finding by the court that such admission is in the incapacitated person’s best interest.

Isn't it curious that family members sign people of limited capacity into nursing homes all the time? But now, if they happen to be the person’s Guardian, they have to go through a tortuous probate process first. Dealing with the delay and cost of probate court has often been painful. For many people, it will now be even more painful, and expensive. I just received a $350 bill from the newspaper for the longer legal notices required under the new law. Additionally, many cases will now require two legal notices: one for the Guardianship and another one for a Conservatorship.

The new special authority needed for a nursing home admission is similar to Rogers cases, for nursing home residents who need antipsychotic medication. Hundreds (if not thousands) of nursing home residents receive those meds. Does every one of them have a Guardian? No way.

I have told each of the facilities I represent about the new law. But the reality is, they need to fill beds. What happens if they say: "Gee Mike, thanks for the advice about the new law, but we're going to accept Mrs. Jones without court permission." Is the Probate Court going to slap them? To me the big question is: will the new law be enforced by inspectors from the Department of Public Health? We don’t know.

The new law does give great deference to a previously signed Power of Attorney or Health Care Proxy. Tell your patients and their families they can save themselves so much grief by having a an elder law attorney prepare a good POA and Health Care Proxy for them, to manage finances and health care decisions, and avoid Guardianship!

For more information or to find a local Elder Law Attorney go to www.manaela.org.

Elder-Friendly Amendments in Latest Health Bill

2009-10-06T09:35:00.002-05:00

At a session that ended at 2:18 a.m. on Friday, October 2, the Senate Finance Committee completed its markup to health reform, the America's Healthy Future Act. The bill contains some recently added amendments that are of great interest to elders.

The bill now includes an amendment offered by Sen. John Kerry (D-MA) that "would protect against spousal impoverishment in all Medicaid home and community based services programs by requiring states to apply the same spousal impoverishment rules currently provided to the spouses of nursing home residents in Medicaid. The provision would sunset after five years."

The bill also incorporates the provisions of the Elder Justice Act (S. 795), which would establish "Offices of Elder Justice" in the Department of Health and Human Services and in the Justice Department and provide federal resources to support state and community efforts to fight elder abuse. Elder Law Attorneys contributed to the effort to see the Elder Justice Act included in the bill. At the NAELA Annual Meeting in Washington DC this past spring, NAELA members visited with many members of Congress and spoke forcefully for the bill.

The Community First Choice Option, a watered-down version of the Community Choice Act, which has stalled in committee, was also added to the bill at the urging of Sen. Charles Schumer (D-NY). The amendment would create a state plan option to provide community-based attendant supports and services to individuals with disabilities who are Medicaid-eligible and who require an institutional level of care.

An amendment offered by Sen. Maria Cantwell (D-WA) would give increased Medicaid funding to states that make reforms shown to divert recipients from nursing homes to home and community based care.

Now that the markup is over, the bill is being translated into formal bill language and a completed bill will be sent to the Congressional Budget Office for its prediction of how it will affect the federal budget deficit. Senate Finance Committee Chairman Max Baucus (D-MT) has promised that his bill will at worst have a neutral effect on the budget deficit over 10 years.

Sen. Baucus said that CBO could have its "score" for the bill ready by Tuesday, October 6, and he said he would like the committee vote on the bill that week. "[I]f we've got a problem [with the CBO score], then we'll come back and we'll have to make some adjustments," Baucus warned.

Senate leaders hope to combine the Finance Committee's bill with the health care reform bill developed by the Senate Health, Education, Labor and Pensions (HELP) Committee.

In other health reform news, Vice President Joe Biden has reiterated the administration's support for the CLASS Act, which would establish a new national long-term care insurance program that would offer basic help to the elderly and disabled. The CLASS Act is included in the HELP committee's reform bill. (For more on the CLASS Act, click here.)

No Estate Tax fixes in the near future?

2009-09-21T13:03:00.001-05:00

It now appears that no changes will be made to the Estate Tax system this fall. An article in the online magazine covering Washington, The Hill, says that insiders say Congress may pass a one year extension on the current rules and then deal with the problem next year as part of broader tax reform. http://thehill.com/homenews/senate/58665-debate-over-estate-tax-likely-to-wait-until-2010.
The problem is that the Estate Tax expires on 12/31/09. All through the year 2010, there will be no estate tax. But, the law phasing out the estate tax expires itself (“sunsets”) on 12/31/10, so as of 1/1/11 we will be back to the old Estate Tax system that was in existence in 2001 (prior to the phase-out law with the 10 year sunset provision). T hat had a 55% tax rate and a lifetime exemption of only $1 million.
If Congress had tried it could not have made a more complex and frustrating situation. No one is sure what the Estate Tax laws will be just a few months from now and everyone is even less sure what they will be a year from now. This makes it almost impossible to do reasonable and adequate Estate Planning.
Some logical proposals such as a 35% tax rate and a $5 million exemption have been put forward by Sen. Blanche Lincoln (D-Ark.) and Sen. Jon Kyl (R-Ariz.) but they were left out of the budget resolution. It is suggested that those concerned with this issue put pressure on their Members of Congress to deal with the issue as soon as possible.

No COLA increase for Social Security in 2010 and 2011 !?!?!

2009-08-25T15:38:00.002-05:00

Millions of retirees (or those still working but of retirement age) may not see any increase in their Social Security checks next year. In fact, they may see a decrease. This has not happened for over 30 years.

The trustees who oversee Social Security are projecting that there won't be a cost of living adjustment (COLA) for the next two years. That hasn't happened since automatic increases were adopted in 1975. Social Security benefits cannot go down, but they only go up automatically if inflation goes up too. With the recent bad economy we have seen "negative inflation" so (based on government numbers) there probably won't be any COLA increase next year and maybe not even the year after that.

The problem is that there is still inflation in many areas of the economy, most notably health care. If seniors Medicare Part B and Part D costs rise, and if those seniors have those deducted from their Social Security checks, they may see a net decrease in their check amount. This hasn't happened before either. The negative backlash may be overwhelming. Members of Congress may look fondly on the quaintness of those opposing health care reform at their recent town meetings!

Report - Temporary Measures Proposed to Stop Estate Tax Repeal

2009-08-17T09:20:00.002-05:00

The Wall Street Journal reports that plans are afoot in Congress to pass a bill that would temporarily stop the repeal of the Estate Tax which is scheduled for 1/1/10 under current law. Of course, that current law sunsets itself on 1/1/11, but for one year there is no estate tax at all. (Those with a dark sense of humor are wondering if advisors for wealthy but sickly individuals are trying to find medical care to keep them alive until next January - or advising them to try to die in 2009?)

It had always been assumed that something would be done prior to 1/1/10 (or at least 1/1/11) to change the law passed in 2001. That law repealed the Federal Estate Tax with a 10 year phase-out. But, because the Republicans did not have a two-thirds majority, the bill itself could not be permanent. It had to include a "sunset" clause that repealed all of the bill's provisions at the end of 10 years.

Many things intervened over the next several years, including the war on terror, hurrican Katrina, and now a new administration. So, the bill never was addressed - neither to make the repeal permanent, nor to stop the temporary repeal that will happen in 2010. So, now something has to be done in a hurry.

We would suggest that you contact your own representatives in Congress and express your opinion on this matter. The Estate Tax brings in revenue to the Government, but its original purpose was to stop the super-wealthy from amassing so much wealth and power that they threatened our Democracy. This was done with a high (almost 50%) tax rate. With inflation it is no longer appropriate to consider those with $1 or $2 million as a threat to democracy. The amount that is exempt needs to be increased and indexed to inflation, if we are to keep the tax.

Here is a link to the Wall Street Journal article:
http://online.wsj.com/article/SB10001424052970203863204574346930384296134.html#articleTabs=article

Irrevocable Trust fails at Medicaid Planning

2009-06-22T09:37:00.002-05:00

The Massachusetts appeals court recently held that even though an irrevocable, income-only trust expressly prohibited distributions of principal, other provisions in the trust could conceivably permit the trustees to invade trust assets, and thus the trust is countable for Medicaid purposes. Doherty v. Director of Medicaid (Mass. App. Ct., Essex, No. 08-P-939, June 18, 2009).

In 2000, Muriel Doherty amended her existing family trust, declaring the trust irrevocable. She also removed herself as trustee and directed the successor trustees to distribute only the trust's income to her. The trust expressly stated that the trustees could "make no distributions of principal from the Trust, to or on behalf of" Ms. Doherty. After entering a nursing home in December 2005, Ms. Doherty applied for MassHealth/Medicaid benefits. MassHealth denied her application, concluding that, in at least some circumstances, the trust allowed Ms. Doherty's trustees to distribute trust assets to her.

The superior court affirmed the benefit denial, agreeing with MassHealth that the trust's prohibition against distributions cannot be read in isolation. For example, MassHealth pointed to a provision that the trustee may, "in its sole discretion" and notwithstanding "anything contained in this Trust Agreement" to the contrary, "pay over and distribute the entire principal of [the] Trust fund to the beneficiaries thereof..." so long as the trustees, "in [their] sole judgment," determine that the "fund created ... shall at any time be of a size which ... shall make it inadvisable or unnecessary to continue such Trust fund."

Another provision gives to the trustee the power to "determine all questions as between income and principal and to credit or charge to income or principal or to apportion between them any receipt or gain ...." The trust also specifically provides that Ms. Doherty has the power to appoint any part or all of the principal of the Trust fund to any one or more of her descendants or siblings.

Ms. Doherty appealed, arguing that these and similar provisions are, at most, administrative boilerplate that don't allow the trustees any authority to invade principal in light of the explicit provision to the contrary. The Appeals Court of Massachusetts affirmed the benefit denial, finding that "the trust vehicle, considered as a whole, evidences Muriel's expectation or intent that the trustees will invade trust assets when necessary to ensure Muriel's comfort." However, the court hastened to "stress that we have no doubt that self-settled, irrevocable trusts may, if so structured, so insulate trust assets that those assets will be deemed unavailable to the settlor."

For a news article on the decision in the Boston Herald, click here.

Long-Term-Care must be part of Health Reform

2009-05-18T12:12:00.002-05:00

In the next few weeks, the Senate should finalize legislation to reform America's health care system. Although around 48 million Americans don't have medical insurance, more than 250 million have no insurance protection for the costs of long-term-care. This is why advocacy groups representing the elderly and those with special needs are pressing for the inclusion of long-term care services and supports in any legislation.

The Senate Finance and Health, Education, Labor and Pensions Committees are scheduled to finalize their legislative proposals for health care reform within the next two to three weeks (mid-May to early June, 2009). The bills are expected to be merged on the Senate floor in June 2009. Three House committees are also developing their own legislation, but are not as far along as the Senate.

Advocacy groups, such as the Disability Policy Collaborative and the Autism Society of America, are calling for an end to Medicaid's institutional bias, which denies America's frail elderly and individuals with special needs an equal choice for home and community services over institutionalization. They point out that hundreds of thousands of individuals are on waiting lists for Medicaid home and community-based services.

The groups are urging passage of two pieces of legislation in particular:

The Community Living Assistance Services and Supports (CLASS) Act (S. 1758), which would create a national program under which an individual paying premiums to the federal government would be eligible for a daily cash benefit ranging from $50 to $100, to pay for "home modifications, assistive technology, accessible transportation, homemaker services, respite care, personal assistance services, and home care aides"; and

The Community Choice Act of 2007 (S. 799), which would provide individuals with disabilities and older Americans with equal access to community-based attendant services and supports.
Sen. Ted Kennedy (D-MA), who introduced the CLASS Act, has declared that he will not assist in the movement of a health reform bill that does not include long-term care coverage.

The advocacy groups are urging concerned citizens to contact their senators to show public backing for making long-term care a part of health care reform.

Medicare Rights Center Secures Coverage for New York Woman’s Cancer Treatment

2009-05-15T12:25:00.000-05:00

New York, NY – More than two years after it first filed an appeal, the Medicare Rights Center has secured coverage under the Medicare Part D prescription drug benefit for a New York woman’s ovarian cancer treatment. As a result, Judith M. Layzer will obtain coverage from her Part D plan of Cetrotide, a hormone treatment costing upwards of $35,000 per month, which has been shown effective against ovarian cancer, with minimal toxicity, in a study in the journal Gynecologic Oncology.

“This decision means I will be able to afford to continue an effective treatment prescribed by my doctor,” Mrs. Layzer said. “I have been energetically pursuing this approval and so has the Medicare Rights Center and we finally won, but it should not be this hard, or take this long, to obtain coverage for medically necessary drugs.”

The victory, handed down in an April 20, 2009 decision by the Part D independent review entity, follows passage last summer of the Medicare Improvements for Patients and Providers Act (MIPPA). MIPPA clarified the standard of coverage for off-label drug treatments—uses of drugs that are different from the use approved by the Food and Drug Administration. The clarification, which took effect January 1, 2009, explicitly allows coverage determinations to be based on research in peer-reviewed literature—respected journals like the New England Journal of Medicine and the Journal of the American Medical Association—in determining when an off-label use is “medically accepted.”

Before passage of MIPPA, drug plans were prohibited by regulation from covering such treatments unless there was support in drug compendia—privately published reference manuals—designated by statute. Numerous studies, including a recent study in the Annals of Internal Medicine, have highlighted the failure of compendia publishers to keep current with the research on off-label drug treatments.

“This victory is important for Mrs. Layzer and for all cancer patients,” said Paul Precht, Medicare Rights Center Director of Policy and Communications. “It is also a sign for policymakers on Capitol Hill and in the Obama administration that coverage decisions in these types of drug treatments can, and should, be made case-by-case on the basis of sound evidence vetted through the peer-review process.”

The Medicare Rights Center has pursued two complementary strategies to secure Part D coverage for safe and effective off-label treatments. The Medicare Rights Center, on behalf of Mrs. Layzer and Ray J. Fischer, who suffers from a rare form of muscular dystrophy, has challenged in federal court the regulations that restrict coverage of off-label drug treatments only to those uses with support in the compendia. That suit is now pending in the US District Court in the Southern District of New York.

At the same time, the Medicare Rights Center has pursued a legislative remedy, seeking clarification from Congress that off-label drug treatments can be covered under Part D if there is evidence of efficacy in peer-reviewed literature. That effort was successful with respect to anticancer chemotherapy drugs only with the passage of the MIPPA. The Medicare Rights Center continues to advocate for passage of legislation that would explicitly require case-by-case coverage determinations for off-label uses of non-cancer drugs on the basis of sound research published in peer-reviewed journals showing off-label use is effective.

Medicare Rights Center is a national, nonprofit consumer service organization that works to ensure access to affordable health care for older adults and people with disabilities through counseling and advocacy, educational programs, and public policy initiatives. www.medicarerights.org

Ending the Two Year Wait for Medicare for SSD Beneficiaries

2009-05-14T15:07:00.001-05:00

A Bill, pending in Congress, would end the two-year waiting period for Medicare benefits for people who qualify for Social Security Disability (SSD) - individuals who have suffered a medical condition that renders them unable to work ("Permanently and Totally Disabled"). Medicare coverage is currently available to individuals who are determined to be eligible for SSD benefits, but not until 29 months after the month in which SSD eligibility is determined. For those without private insurance, who can't afford COBRA, or whose costs exceed the catastrophic limits of their private coverage, the 29 month wait creates serious financial hardship and often leads to impoverishment for those who need to spend down for Medicaid coverage. Some couples must consider divorce to protect the non-disabled spouse.

Please ask your Senators and Representative to co-sponsor the Ending the Medicare Disability Waiting Period Act of 2009 (S. 700/H.R. 1708), which will end this two-year waiting period and give people with disabilities access to the health coverage that they are guaranteed under Medicare. The bill has significant support, including co-sponsorship by Senator Edward Kennedy (D-MA), Chair of the powerful Senate H.E.L.P. Committee. However, it is urgent that additional Senators and Representatives sign on as cosponsors to create pressure for the provisions of this bill to be included in the health care reform package this year. If your Senators or Representative cosponsored the same bill in the last Congress (Senate cosponsors 2007-8, House cosponsors 2007-8), but have not yet cosponsored this year, be sure to thank them for their previous support while urging them to sign on again this year.

Please contact your representative in Congress to discuss this Bill.

To learn more, read Too Sick to Work, Too Soon for Medicare: The Human Cost of the Two-Year Medicare Waiting Period for Americans with Disabilities.

Can Trust Ban Heirs from Marrying Outside Their Religion?

2009-05-13T09:12:00.002-05:00

People often place conditions on inheritances -- for example, requiring a grandchild to complete college before she can receive trust proceeds -- but is it legal for someone to dictate who their heirs can and cannot marry? This is a question that the Illinois Supreme Court is now weighing.

Max Feinberg established a trust that contained a clause disinheriting any of his grandchildren if they married outside the Jewish faith. Despite this clause, four of his five grandchildren chose to marry spouses who were not Jewish. After both Max and his wife, Erla, had died, one of the grandchildren sued her father and an aunt and uncle -- the co-executors of Max and Erla's estates -- claiming that the three had conspired to evade estate taxes and had misappropriated millions of dollars from the estates. The co-executors countered that the grandchild had no legal standing to sue them because she was no longer a beneficiary of the estate, having married a non-Jew.

A trial court ruled that the clause disinheriting the grandchildren was invalid because it was against public policy by placing a significant limitation on the grandchildren's freedom to marry. The Feinbergs' children appealed, arguing that many jurisdictions recognize such clauses and that Max had the right to determine the conditions for the distribution of his and his wife's estates.

In June 2008, the Appellate Court of Illinois upheld the trial court's ruling, agreeing that the provisions are against public policy. The court pointed out that Illinois has a longstanding history of opposing provisions that make it harder to marry or that encourage divorce, and further noted that the Restatement (Third) of Trusts, which interprets trust law for judges and lawyers, also comes out against such clauses. The court did acknowledge that some states allow people to make these decisions regarding their property. And one of the three judges issued a strong dissent, writing that "Max and Erla had a dream. . . to preserve their 4,000 year old heritage."

The Feinberg children appealed again, and the Illinois Supreme Court has agreed to hear the case.

For the Appellate Court of Illinois' ruling in the case, In re Estate of Feinberg, 383 Ill. App. 3d 992 (1st Dist. June 30, 2008), click here.

[Post information from ElderLawAnswers.com]

Social Security Beneficiaries to Get $250.00

2009-04-10T14:51:00.002-05:00

Good News: You are getting $250 and you don't have to do anything to get it. You don't even have to file a 2008 tax return, you just have to be getting the right benefits. As part of the American Recovery and Reinvestment Act of 2009, a one-time payment of $250 will go to adults who receive Social Security Retirement, Disability, Railroad Retirement and Veterans Benefits.

Recipients must have received eligible benefit payments in November or December 2008 or January 2009. However those who receive Medicaid in care facilities will not receive the payment.

The payment should be made in May. It will be made separately from the usual monthly payments, but will be delivered in the same way as your usual benefit. So, if you usually have your check direct-deposited to your bank account, this check will also be delivered that way.

This payment is automatic - no one from the Social Security Administration will be contacting you in order to process your payment. Avoid Fraud! Do not give out your Social Security number or other personal information to anyone who calls or emails claiming to be a Social Security employee.

Taking your late spouse off your deed (you can't do it)

2009-03-03T12:59:00.002-05:00

The Lowell Registry of Deeds (Middlesex County, North) has a wonderful website that contains all sorts of great information. Richard Howe, the Register of Deeds, runs a tight ship and the Registry is very efficient and modern. One of the best parts of the Registry website is their blog. It's full of interesting things, some related to the Registry, and others just for fun. Here is a link to the Registry Blog: http://www.lowelldeeds.com/blog/

One of the most asked questions at the Registry is how to take one's late spouse "off the deed." This cannot be done, but it really bothers widows that their late husband's name is still on the deed; they think it needs to be changed. Here is the Registry's answer to that question:

"In Massachusetts, married couples almost always own their home as “tenants by the entirety” which is a type of joint ownership that carries with it a right of survivorship. As tenants by the entirety, each spouse owns the entire property subject only to the other spouse’s interest in the house. On the death of one spouse, the entire ownership remains in the survivor and the interest of the deceased spouse disappears.

To show this change in ownership in the records at the registry of deeds, the surviving spouse should record a death certificate of the deceased spouse. The registry will create a link between the deed showing the tenancy by the entirety and the death certificate. The two documents taken together show that ownership of the property resides solely with the surviving spouse.

The registry requires an original death certificate (i.e., not a photocopy) and the filing fee is $75 payable in cash or check (made payable to “Registry of Deeds”). The death certificate can be recorded by bringing it to the registry or by mailing it to the above address (if mailing, please include a self-addressed, stamped envelope so we can return the original to you).

We often receive calls from individuals who have just lost a spouse telling us that their insurer, bank or town assessor insists that the decedent’s name be “taken off the deed.” Such a request is often based on a misunderstanding of Massachusetts property law since nothing is ever taken “off a deed” and, in the case of spouses owning property as a tenants by the entirety, the surviving spouse automatically becomes the sole owner of the property so there is no need to create a new deed."

Knee Surgery OK for Octogenarians

2009-02-26T14:24:00.002-05:00

Knee replacement surgery can improve the quality of life even for very elderly patients, according to a study presented at the 2009 Annual Meeting of the American Academy of Orthopaedic Surgeons (AAOS). The study found that patients in their 80s can benefit both physically and socially from knee replacement surgery, also called total knee arthroplasty (TKA), once thought too risky for the very elderly.

“As patients are living longer, there is an upward trend in the demand for quality of life among the elderly population,” said Edsel Arandia, M.D., lead author of the study and an orthopaedic surgeon at Philippine Orthopaedic Center and a Fellow at Singapore General Hospital. “As patients age, debilitating diseases like arthritis of the knee begin to develop. We conducted this study to determine the viability of TKA in octogenarians and to learn whether their quality of life improves after TKA.”

Dr. Arandia and his team reviewed data from 128 patients older than 80 years of age who underwent knee replacement surgeries. When researchers compared the patients’ preoperative scores to their postoperative scores up to 2 years following surgery, they found the patients’ quality of life scores had risen significantly during the postoperative period.

“The improvement in pain and function of elderly patients was remarkable as early as 6 months and showed long-lasting improvement at the 2-year follow-up,” Dr. Arandia noted. “Overall, total knee arthroplasty in elderly patients resulted in significant gains in their quality of life, which was reflected in both health- and social-related quality of life score dimensions.”

“In our institution, many surgeons are still skeptical to perform TKA in the very elderly since few data or studies pertaining to the gains of TKA versus the complications and risks that can occur with surgery in elderly patients exist,” Dr. Arandia said. “This study shows that with the advent of new technology and techniques in both orthopaedics and geriatric medicine, total knee arthroplasty in the very elderly population is very safe and offers significant gains in their quality of life.”

About AAOS
www.orthoinfo.org