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We hope you are enjoying your summer. The July issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates, is as informative as ever. Read about the cost of Long Term Care staying steady, ways siblings can work together to take care of their loved ones, and a facinating study which reveals how well we know (or don't know) our spouses' end-of-life wishes. You'll also find an update about one assisted living company that is evicting some of its residents and a book review.
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2007 Long-Term Care Insurance Price Index Announced
 A 55-year-old individual considering long-term care insurance protection can expect to pay $665 a year if they are married or $1,075 if they are single according to the 2007 Long-Term Care Insurance Price Index, an annual report from the American Association for Long-Term Care Insurance, an industry group.
A 65-year-old purchasing comparable coverage will pay $1,292 (married) or $1,923 (single) according to the report. Costs are roughly the same as the prior year, the Association said.
The annual index measures current costs for top-selling long-term care insurance policies that offer the ability to receive care either at home or in a skilled care facility. The index compares costs for plans that provide benefits for 3 years, which increasingly is accepted by industry experts as a basic level of protection for many, according to the Association. The study priced plans that provide $110,000 or $172,000 in current protection ($100/day and $150/day for 3 years) for someone age 55. Benefits increase at five percent compounded annually.
For the complete 2007 price survey, click here LTC price index 2007.doc.
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| Avoid Sibling Disputes Over Caregiving By Putting It in Writing
 Caring for an elderly parent can be stressful for families. Siblings may disagree over how to provide care or where a parent will live, and if these squabbles escalate into a guardianship battle, it can cost the family thousands of dollars. To avoid this, lawyers have begun drafting sibling agreements (also called family care agreements).
If a parent becomes incapacitated and can no longer take care of him- or herself, questions can come up between siblings over where a parent should live, who should manage the parent's money, or who will assume primary caregiving duties. A sibling agreement can address these issues and provide consequences if the agreement is not followed.
Sibling agreements are not meant to replace a trust or a power of attorney. Instead the agreement can complement these valuable estate planning tools by providing guidance for the trustee or the holder of the power of attorney. The following are some examples of topics an agreement might cover:
- Which sibling has primary care of a parent and how caregiving duties will be divided among siblings
- Whether a sibling will be reimbursed for caring for a parent
- Where the parent should live - with a child, in assisted living, in a nursing home?
- How to decide whether a parent should move into a nursing home
- How the parent's money will be managed
- Whether the siblings will contribute financially to the parent's care
If the siblings can't reach an agreement, a geriatric care manager or mediator can help draft the agreement. (For more on family mediation, click here.) Mediators can also help if one of the siblings breaches the agreement. Consequences for breaching a sibling agreement could be losing a power of attorney or a reduction in inheritance.
To read an article on these agreements in the Dallas Morning News, click here.
For a USA Today article on how caring for an elderly parent can strain sibling relationships, click here.
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| Assisted Living Company Begins Purge of Residents on Medicaid
 In April 2007, Assisted Living Concepts, Inc., which operates assisted living facilities in 17 states, began evicting Medicaid recipients living in its facilities and refusing entry to applicants who are on Medicaid. So far, the company has evicted about 40 residents from facilities in Nebraska and Texas.
Over the next five years, company officials say they plan on having their 1,800 remaining Medicaid recipients move out, either voluntarily as they choose to move into other assisted living facilities or nursing homes, or involuntarily through evictions. This would leave the company with facilities occupied only by more lucrative private-pay residents. On average, Medicaid pays $24,812 a year, which is 31 percent less than the $36,200-a-year average that assisted living facilities cost.
Recognizing that assisted living facilities are less expensive than nursing homes, some states now offer Medicaid long-term care coverage to assisted living residents. Assisted Living Concepts' actions have stirred debate about whether the state governments or the assisted living industry are responsible for the fate of residents suddenly threatened with eviction simply because Medicaid is paying their bills.
In an interview with ElderLawAnswers, Assisted Living Concepts' chief executive officer Laurie Bebo said the company filed for bankruptcy twice in the 1990s and is now moving toward serving only private-pay residents in part because it does not want to undergo a third bankruptcy.
"They [Assisted Living Concepts' former management] just didn't learn from the past that you can't make ends meet [on Medicaid]," said Bebo. "Now we are making the right decisions for the company."
Even with Medicaid residents in its facilities, Assisted Living Concepts made about 24 percent more in fourth-quarter earnings in 2007 than it did in 2006. In addition, the company plans to spend $50 million to add 400 units to 20 existing centers.
Bebo sought to minimize the impact on existing residents on Medicaid. "As we lose people through attrition or they move out voluntarily, [on average] we will probably get down to one or two people [with whom we will] we have ended our Medicaid contracts," said Bebo.
Those "one or two people," which in Texas in May 2007 turned out to be a dozen, may be unprepared to move. Nevertheless, there are few legal options open to them.
Eric Carlson, Director of Long Term Care Projects at the Los Angeles office of the National Senior Citizens Law Center, based in Washington, D.C., said that people who have been evicted may not have a strong case to stop their eviction through an injunction or filing a class action lawsuit.
"In most states there are some limitations on eviction or involuntary transfer. They [the limitations] are very weak," said Carlson. He recommends that evicted seniors consult with a local attorney about their options.
"You'd have to put some real effort into it," Carlson said. "There need to be some very fact-specific inquiries: what were the representations [made by the company] and what were the understandings [of the residents]."
Assisted Living Concepts, which recognizes the evictions come as a shock to some, says that it is attempting to make moving easier.
"In many cases, we have given additional notice. We are only required to give 30 days notice, but we have given 60-150 days notice," said Bebo. Bebo says Assisted Living Concepts is also working with states, residents, and the families of residents to relocate evicted residents to appropriate facilities.
"People in good faith moved into these facilities with the expectation that they would get to stay," said Carlson. "[The evictions] are an indication that there needs to be more oversight. Beyond that, it raises public policy issues as to the standards imposed upon assisted living facilities."
For more information on fighting an assisted living discharge, click here.
For more on assisted living facilities, click here. |
| Book Review: Why Wills Won't Work
 Armond Budish. Why Wills Won't Work (If You Want to Protect Your Assets). Penguin Group, New York, NY. 2007. 215 pages.
$17.90 on Amazon (click on book to order).
The premise of Why Wills Won't Work is that the most common planning strategies -- wills, joint ownership, beneficiary designations, and living trusts -- are not enough to protect your assets for your heirs. The author, elder law attorney Armond Budish, recommends using a combination of different kinds of trusts as a way to make sure your assets go where you want them to go after you die.
Budish, a member of the Ohio House of Representatives, explains how his customized SAFE (Safeguard Assets for your Family Exclusively) method is the only solution that will ensure designated heirs will receive their intended inheritances.
The book begins with a questionnaire that allows you to pinpoint the issues you are concerned with so you and your attorney can figure out the right strategies to protect your assets. Through helpful real-life stories, Budish explains how to use trusts to protect a child's inheritance in the event of a divorce, how to protect grandchildrens' inheritances after a child dies, and how to protect your family from creditors and lawsuits. He also recommends methods to avoid estate taxes, protect disabled beneficiaries, and shield assets from nursing home costs (the book includes a discussion of Medicaid).
In addition to providing details on types of trusts, Why Wills Won't Work also covers selecting a trustee, what to put in a trust, how to choose a lawyer, and what steps to take when a spouse dies. Writing in an easy-to-understand style and using numerous examples, Budish provides practical information that can be applied to anyone's situation. |
| Spouses' Guesses About End-of-Life Wishes Not Always Accurate
 Most older adults who are married name their spouses to make health care decisions for them should they become incapacitated and unable to convey their wishes to care providers. The common way to do this is through a durable power of attorney for health care, also called a health care proxy. But how accurate are spouses at knowing what their spouse would want to do in a particular situation?
Spouses are often surprisingly inaccurate, according to a new study by University of Wisconsin researchers. Reviewing responses from 2,750 married couples who participated in the 2004 Wisconsin Longitudinal Study, the researchers concluded that individuals often incorrectly identified their spouse's care preferences.
For example, 28 percent of the study respondents incorrectly named their spouse's preferences when presented with a hypothetical scenario involving the spouse being in great pain and having a low chance of survival. And 14 percent incorrectly identified their spouse's preferences if the spouse were in minimal pain but were cognitively impaired.
The researchers found support for their hypothesis that respondents were projecting their own end-of-life preferences onto their partner. "[Respondents] did not distinguish well between their own preferences and the preferences of their spouses," the researchers concluded.
But the researchers found no support for the hypothesis that women are more accurate predictors of their spouse's wishes than are men.
Among the researchers' possible explanations for the apparent lack of knowledge of a spouse's end-of-life treatment preferences were: a wish to avoid thinking about a partner's death; an attempt to shield loved ones from potentially distressing concerns; efforts to conceal preferences from one another if they think the spouse will disapprove or change the preference; and the assumption that loved ones know them well enough to make the right choices.
To read the full study, "Do Older Adults Know Their Spouses' End-of-Life Treatment Preferences?", click here.
For more on the health care proxy, click here. |
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Elder Law Associates PA is a boutique elder law firm
that practices exclusively in Medicaid and long term
care planning; home and community-based waiver
services; Medicaid applications; nursing home
residents' rights litigation; asset preservation
planning with a special focus on planning in light of
the Deficit Reduction Act of 2005, including
promissory notes and personal care agreements;
disability planning, including special needs trusts and
guardianship; estate planning, including wills and
trusts; long term care insurance; advanced
directives; and probate, which encompasses estate
and trust administration. We assist clients in planning
for the possibility of disability, incapacity, home
health care, assisted living and/or nursing home
placement. Our firm enables clients to avoid
impoverishment caused by the escalating cost of
long term care, to maintain their right to make health
care decisions and to avoid unnecessary medical
treatment.
We hope you have enjoyed The Elder Law Update. 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.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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