|
|
Thank you to the many readers who sent their positive feedback about our debut issue of The Elder Law Report, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates. We are certain you will find this issue a worthy read with interesting articles from tips about long term care insurance to the surprising benefits of a non-profit nursing home verses one that is privately owned.
Please continue to send your comments and questions to Info@ElderLawAssociates.com. We love to hear from you!
 |
 |
 |
What a Good Long-Term
Care Policy Should Include As nursing home and
long-term care costs continue to rise, the
Deficit Reduction Act has made it more difficult
to qualify for Medicaid to pay for nursing home
costs. Long-term care insurance can help cover
expenses, but long term care insurance contracts
are notoriously confusing. How do you figure out
what is right for you? The following are some tips to help you sort through all the different options.
Find a strong insurance company. The first step is to choose a solid insurance company. Because it is likely you won't be using the policy for many years, you want to make sure the company will still be around when you need it. Make certain that the insurer is rated in the top two categories by one of the services that rates insurance companies, such as A.M. Best, Moodys, Standard & Poor’s, or Weiss.
What is covered. Policies may cover nursing home care, home health care, assisted living, hospice care, or adult day care, or some combination of these. The more comprehensive the policy, the better. A policy that covers multiple types of care will give you more flexibility in choosing the care that is right for you. Another factor to consider is how many activities of daily living (ADLs) need to be impaired in order to trigger the policy. ADLs are things like eating, dressing, bathing, cooking, using the toilet, maintaining continence, and moving around. If possible, choose a policy that covers you when you can't perform at least two ADLs, one of which is bathing.
Waiting period. Most long-term care insurance policies have a waiting period before benefits begin to kick in. This waiting period can be between 0 and 90 days, or even longer. You will have to cover all expenses during the waiting period, so choose a time period that you think you can afford to cover. A longer waiting period can mean lower premiums, but you need to be careful if you are getting home care. The waiting period is not based on calendar days, but on days of reimbursable service, which can be very complicated. Some policies may have different waiting periods for home health care and nursing home care.
Daily benefit. The daily benefit is the amount the insurance pays per day toward long-term care expenses. If your daily benefit doesn't cover your expenses, you will have to cover any additional costs. Purchasing the maximum daily benefit will assure you have the most coverage available. If you want to lower your premiums, you may consider covering a portion of the premium yourself. You can then insure for the maximum daily benefit minus the amount you are covering. The lower daily benefit will mean a lower premium.
It is important to determine how the daily benefit is calculated. It can be each day's actual charges or the daily average, calculated each month. The latter is better for home health care because a home care worker might come for a full day, one day, and then only part of the day, the next day.
Benefit period. When you purchase a policy, you need to choose how long you want your coverage to last. In general, you do not need to purchase a lifetime policy – three to five years worth of coverage should be enough. In fact a new study from the American Association of Long-term Care Insurance shows that a three-year benefit policy is sufficient for most people.
According to the study of in-force long-term care policies, only 8 percent of people needed coverage for more than three years. So, unless you have a family history of a chronic illness, you aren't likely to need more coverage.
If you are buying insurance as part of a Medicaid planning strategy, however, you will need to purchase at least enough insurance to cover the five-year lookback period. That way you can transfer assets to your children or grandchildren before you enter the nursing home, use the long-term care coverage to wait out Medicaid's new five-year look-back period, and after those five years have passed apply for Medicaid to pay your nursing home costs (provided the assets remaining in your name do not exceed Medicaid's limits).
If you do have a history of a chronic disease in your family, you may want to purchase more coverage. Coverage for 10 years may be enough and would still be less expensive than purchasing a lifetime policy.
Inflation protection. As nursing home costs continue to rise, your daily benefit will cover less and less of your expenses. Most insurance policies offer inflation protection of 5 percent a year, which is designed to increase your daily benefit along with the long-term care inflation rate of 5.6 percent a year. Although inflation protection can significantly increase your premium, it is strongly recommended. There are two main types of inflation protection: compound interest increases or simple interest increases. If you are purchasing a long-term care policy and are younger than age 62 or 63, you will need to purchase compound inflation protection. This can, however, more than double your premium. If you purchase a policy after age 62 or 63, some experts believe that simple inflation increases should be enough, and you will save on premium costs.
|
 |
 |
 |
 |
Consumer
Reports Finds Non-Profit Nursing Homes
Provide Better Care
A new survey of nursing homes by Consumer Reports finds that poor care is still common, but that not-for-profit nursing homes tend to provide better care than for-profit facilities. Additionally, independently run nursing homes provide better care than nursing homes run by corporations.
With a grant from the Commonwealth Fund, Consumer Reports analyzed state inspection reports for some 16,000 nursing homes across the United States. It also looked at staffing levels and quality indicators, such as the number of residents with bed sores. Consumer Reports used the data to list the facilities in each state that rank in the best or worst 10 percent according to their quality indicators.
Now in its fifth year, the survey found that nursing home conditions have not improved significantly. Consumer Reports offered several recommendations for finding good care, including the following:
- Get a list of local nursing homes and the name of the local ombudsman who investigates nursing homes from your local agency on aging. Check with the local ombudsman.
- Check the ownership. As the survey found, not-for-profit and independently owned nursing homes tended to have better care.
- Visit the homes repeatedly, including a surprise visit. If you visit between 9:30 and 10:00 am and find that residents are still in bed, it may be a sign that there is not enough staff to get residents out of bed. Similarly, it is not a good sign if you visit in the evening and three-quarters of the residents are eating in their rooms.
- Don’t rely on the Centers for Medicare and Medicaid Services' Nursing Home Compare site Web site. According to Consumer Reports, the information on the site is incomplete and possibly misleading.
For the full Consumer Reports' nursing home guide, click here.
|
 |
 |
 |
 |
Book Review: The
Baby Boomer's Guide to Nursing Home Care
Currently, many baby boomers are dealing with one or both parents' long-term care needs. From choosing a nursing home to moving there to making medical decisions, there are so many different factors to consider. And the decisions don't go away -- as the baby boomers age, getting good long-term care will become a bigger and bigger issue. The Baby Boomer's Guide to Nursing Home Care was written to help children of aging parents address these issues and ensure that nursing home residents and their caregivers get the best nursing home care possible.
The authors, who are attorneys with the National Senior Citizens Law Center (NSCLC), cover practical issues like what to bring when one moves to a nursing home as well as legal issues like how to respond to a nursing home's attempted eviction. The book uses a question-and-answer format to cover the topics, which makes the information easy to read and understand. Other helpful features include tips and guides (for example, the book offers a helpful guide to using the Medicare's "Nursing Home Compare" Web site).
Other subjects covered include choosing a nursing home, paying for care (including a thorough discussion of Medicaid), the admission process, moving in, quality of care, and health care decision making. In addition, the book has several appendixes with helpful addresses and phone numbers, as well as the Medicaid resource and income allowances and average monthly private pay rates for each state.
|
 |
 |
 |
 |
Case Highlights the
Need to Use an Estate Planning Expert
If you are going to draw up a will or estate plan, it pays to have it done by an attorney who is well-versed in this area of the law. A recent Washington, D.C., court decision is a reminder of this: the court found that an attorney who drafted a will as a favor to friends, despite having no estate planning experience, incompetently represented the person making the will and engaged in a conflict of interest. In re Long (D.C., No. 04-BG-883, July 20, 2006).
Attorney J. Sinclair Long was friends with an elderly woman, Lessie Lowery, and her relative and caretaker, Wilbert Harris. In 1996, Mr. Harris asked Attorney Long to draft a will in which Mrs. Lowery would leave all her assets to Mr. Harris. Attorney Long agreed, even though his professional legal career was in government service and criminal law and he had no experience in estate planning.
Attorney Long used a "form will," changed it somewhat, and gave it to Mrs. Lowery to sign. He did not ask her whether there were any other relatives who might be upset by her testamentary plans. While the will was being prepared, Attorney Long was also assisting Mr. Harris with an Adult Protective Services inquiry into whether Mrs. Lowery was being exploited and neglected. As part of his assistance to Mr. Harris, Attorney Long drafted a power of attorney for Mrs. Lowery to sign giving Mr. Harris full control of her assets.
Following Mrs. Lowery's death, several nieces and nephews contested the will that Attorney Long had drafted. The case was eventually settled, with Mr. Harris receiving only 40 percent of the estate and Mrs. Lowery's other heirs receiving the rest.
Attorney Long also paid a price. A board that oversees the conduct of lawyers in the District of Columbia found that he had incompetently represented Mrs. Lowery and had engaged in a conflict of interest by also representing Mr. Harris. The board recommended that Attorney Long be suspended from the practice of law for thirty days. Noting that "Long's foray into estate planning represented a one-shot event of a personal nature" that is unlikely to happen again, the District of Columbia Court of Appeals did not suspend Attorney Long but rather placed him on probation.
To download the full text of this decision in PDF format, go to: http://www.dcappeals.gov/dccourts/appeals/pdf/04-BG-883.PDF. |
 |
 |
 |
 |
Getting Comfortable
With Estate Planning Terminology
Some people feel uncomfortable meeting with an attorney to discuss their estate planning needs because of an unfamiliarity with the law. A good lawyer will discuss your available options in simple terms that a person with no legal training can comprehend.
You can also relieve some of that hesitancy by familiarizing yourself with legal terminology before meeting with a qualified estate planning attorney to discuss the appropriate choices for you. The following is a short list of common legal terms that may come up in an estate planning meeting. Take just a few minutes to familiarize yourself with this list and keep it handy for future reference.
Attorney-in-Fact:
A person who is named under a Power of Attorney to act on behalf of another person.
Beneficiary:
A person or entity that receives a benefit from an estate, trust or asset transfer vehicle.
Death Probate:
The legal process used to assemble and transfer a decedent's assets to the intended beneficiaries and settle a decedent''s outstanding debts.
Decedent:
A person who has passed away.
Donee:
A person or entity who receives a gifted asset from a donor.
Donor:
A person or entity who gifts an asset to another person or entity.
Estate:
All the assets owned by a decedent upon his or her death.
Executor/Personal Representative:
The person responsible for settling a decedent's estate.
Grantor:
A person who transfers an asset to another person or entity.
Guardian of the Person:
A court-appointed supervisor in charge of the care of a minor or incompetent person''s physical well-being.
Guardian of the Estate:
A court-appointed supervisor in charge of the care of a minor or incompetent person's financial well-being.
Irrevocable Trust:
A trust in which the trustor has not reserved the right to revoke and cannot change the wording in the trust.
Living Trust:
A trust established and operating during the trustor's lifetime.
Revocable Trust:
A trust in which the trustor reserves the right to revoke.
Testator:
The creator of a will.
Trust:
A legal arrangement created to facilitate the transfer of property to a trustee for the benefit of a beneficiary.
Trustee:
A person or entity named in a trust agreement to be responsible for holding and administering the trust assets according to the terms of the trust.
Trustor:
A person who creates a trust. (Also sometimes called a "grantor" or "settlor.")
Will:
A legal document used to transfer assets upon a decedent''s death. |
 |
 |
 |
 |
Reader Comments and
Questions Reprinted with permission
from Morris Law Group's Wealth
Preservation Update
Question
Is
my homestead residence protected from creditors
if I transfer it to my revocable
trust?
Answer
On July 25,
2006, U.S. Bankruptcy Judge Michael G.
Williamson issued an Order in In re Merry
Alexander holding that an individual in debt is
exempt from being forced to sell his or her
homestead personal residence or have a lien
placed against it by judgment creditors, even
when legal title to the residence is held in a
revocable inter vivos trust (RIVT) established
by the individual.
Judge Williamson’s
holding is contrary to the controversial 2001
ruling made by U.S. Bankruptcy Judge George L.
Proctor in In re Bosonetto, an earlier case
involving this issue. Many legal experts were
critical of Judge Proctor’s interpretation of
Florida law as it applied in the bankruptcy
proceeding when he ruled Florida homestead was
not protected once transferred to a RIVT.
Alexander is
the first reported bankruptcy case in Florida,
since the Bosonetto ruling, directly
relating to the creditor protection afforded a
homestead placed in a RIVT, typically for estate
planning purposes. It is important to note
that the holding in Alexander does not
overrule Bosonetto; Judge Williamson simply
declined to follow the ruling made in
Bosonetto, and issued a well reasoned Order
supported by Florida law. Therefore, unless there
is an appeal of Judge Williamson’s ruling in
Alexander, in the Middle District of Florida two
conflicting bankruptcy court decisions on the same
issue currently stand. It will be
interesting to see whether other judges in Florida
will embrace the reasoning of Judge Williamson in
future cases which address the issue of whether
homestead property being held in a RIVT are still
protected from creditors of the grantor of the
RIVT. We can help you with any questions
you may have about how to properly title your
homestead in view of the uncertainty in the
courts. Send us an email to Info@ElderLawAssociates.com
with "Homestead" in the subject line.
|
 |
Elder Law Associates P.A. is a boutique elder law firm that practices
exclusively in elder law, wills and trusts,
Medicaid and nursing home planning, Medicaid
applications, disability planning, special needs
trusts, guardianship and asset preservation. We
assist clients in planning for the possibility of
disability, incapacity, home health care and/or
nursing home placement. We enable clients to avoid
impoverishment caused by the escalating cost of
nursing home care, to maintain their right to make
health care decisions and to avoid unnecessary
medical treatment.
We hope you have enjoyed The Elder Law
Report. If you have questions about something
you read, elder law matters or issues
concerning persons with disabilities, we would be
delighted to hear from you. We serve as an elder
law resource to many professionals and
organizations and want to become your elder law
resource as well. You can reach us at Info@ElderLawAssociates.com.
Feel free to share The Elder Law Report
with others who will benefit from our insights -
just click on the blue "Forward email" link at the
bottom of the page.
Warm regards,
| |