Special Needs Community News
The Agency for Persons with Disabilities (APD) is the agency in the State of Florida that supports persons with develop-mental disabilities in living, learning and working in their community.
Click here for a brief summary of the services provided by APD through waiver programs and contact info.
Click here for an overview of the supports and services that APD provides through the waiver-tier program.
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VA Extends "Agent Orange" Benefits to More Veterans
Relying on an independent study by the Institute of Medicine, the Secretary of Veterans Affairs decided to establish a service-connection for Vietnam Veterans with three specific illnesses based on the latest evidence of an association with herbicides referred to as Agent Orange.
The illnesses are B cell leukemias, Parkinson's disease; and ischemic heart disease.
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Greetings! We hope your new year is off to a fantastic start!
Calling all professional Guardians and attorneys who pratice in Guardianship:
Please join Judge Colin on Feb. 17 from 12:00 pm to 1:30 pm for a brown bag lunch to discuss:
- The need for more court appointed attorneys in Guardianship.
- When to use professional Guardians and how to find them.
- Professional Guardians' and attorneys' fees.
We will meet in Court Room 3 at the South County Courthouse. Please RSVP to Ellen S. Morris, Esq., Event Organizer and partner of Elder Law Associates PA.
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Howard S. Krooks, JD, CELA, CAP, partner of Elder Law Associates PA, presented "Medicaid Planning after DRA" at The Elder Law Certification Review Course on January 15, 2010 held in Orlando. This advanced level review course was jointly presented by The Florida Bar Continuing Legal Education Committee and the Elder Law Section.
On December 21, 2009, Howard Krooks was a guest on The Karen Morrow Radio Show on WSTU in Stuart, Florida regarding long term care. Click here to listen to the show.
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See below for exciting developments in Florida regarding Medicaid's treatment of promissory notes.
We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We continue to welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
An Exciting New Development Regarding Promissory Notes in Florida
We are pleased to announce that Florida has recently changed its Medicaid Manual to remove language that previously rendered all promissory notes countable resources, even if they were DRA compliant notes. With this change in the Medicaid Manual, it appears that the restriction on the use of notes in Florida has been lifted, although only time will tell if the countability issue has been resolved fully through actual Medicaid Applications being filed where notes were utilized in the planning. The change in policy by Florida Medicaid was accomplished through months of advocacy on the part of the Academy of Florida Elder Law Attorneys (AFELA) and The Florida Bar Elder Law Section Joint Public Policy Task Force, led by a sub-committee of Task Force members consisting of Elder Law Associates PA's Howard Krooks and Ellen Morris, and Lauchlin Waldoch of McConnaughhay Law Group, P.A. in Tallahassee.
This is important not just to Florida attorneys, but to anyone who lives in a state where promissory notes are not currently allowed. To quote Howard Krooks,
The moral of the story is of course that, at least in our experience, it is worthwhile to pursue an ongoing relationship with Medicaid, one that spans the test of time and not just an occasional contact. It may not resolve every issue, and litigation will remain an option for some issues that cannot be resolved in this way. Having said that, ongoing communication could provide an extremely useful and powerful way to effectuate change in Medicaid policy and, at a minimum, will reveal to the elder law bar (and vice versa) the thinking of the Medicaid agency on important policy issues. We hope that elder law sections and NAELA Chapters around the country will be encouraged to blaze this trail by learning of our experience in our collective ongoing efforts to effectuate positive policy change in matters relating to our profession and our clients.
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Online Retirement Planning Calculators Measure Risk Poorly, Study Finds
 If you are retired or are nearing retirement, the main questions on your mind are probably "Will I run out of money in retirement?" and "Will I be able to maintain my standard of living?" For answers, people often turn to free online retirement calculators, such as those listed on ElderLawAnswers' Calculators page, that calculate how much users will need to save to achieve their retirement objectives, based on details about their finances.
But how well do these calculators account for the inherent risks in retirement, such as how long you will live, how your investments will perform, what the inflation rate will be, and health care and long-term care costs? Not very well, according to a new study by the Pension Research Council.
"We conclude," the study's authors write, "that on the whole, the tools do not highlight nor address retirement risk particularly well; rather, they mainly mask risk."
The authors, retirement experts Anna M. Rappaport and John A. Turner, reviewed the available research on five leading Web-based calculators to see how they handle post-retirement risks. The calculators they looked at were Fidelity's Retirement Income Planner, AARP's retirement planning calculator, MetLife's calculator, the U.S. Department of Labor's calculator and T. Rowe Price's Retirement Income Calculator.
In their working paper "How Does Retirement Planning Software Handle Post-Retirement Realities?" Rappaport and Turner conclude that while the calculators "can provide a rough idea of whether the user is on target for retirement," all inadequately assess the risk of running out of money.
For example, one calculator determines income sufficiency based on average life expectancy and overlooks the very real chances of living longer than the average. Another assumes that everyone, even if not married, receives the same Social Security benefits. Several do not permit calculations to take spouses into account. Among the authors' other findings:
- None of the consumer calculators they evaluated treat inflation as a risk, instead assuming that inflation is constant over the retirement period analyzed.
- None treated expected medical and long-term care expenses as a risk factor or alerted users to the potentially huge impact such expenses could have on retirement plans.
- Few have checks on inconsistent or outlandish assumptions. For example, many programs permit the user to specify long-term risk-free rates of return of 10 or even 20 percent.
- Some calculators do not ask users to indicate expected inheritances or other one-time receipts of assets, and some do not include the value of housing as a source of retirement income.
- Several of the programs ignore taxes, leading users to conclude that they have more retirement resources than they actually do.
- The calculators cannot take account of extreme events such as the recent financial crisis, in which housing values have fallen and mortgage rates have risen -- at the same time that people are losing jobs.
The authors note that "consumers or financial professionals working with them could benefit from trying alternative programs and scenarios within each program."
The study also looked at retirement planning software for financial planning professionals. The authors concluded that while these tools are more complex than their consumer counterparts, they still contain flaws.
To read the Pension Research Council's working paper "How Does Retirement Planning Software Handle Post-Retirement Realities?" click here. (Free sign-up required.) |
Financial Crisis Affects Prepaid 529 Plans
 As Elder Law Associates PA reported earlier this year, the uncertain stock market has made prepaid 529 plans more attractive to parents looking to save for their children's college education. However, the same economic problems that have increased the popularity of the plans are also putting the plans in jeopardy. Many plans are running out of money, causing states to impose higher fees or consider shutting them down.
A prepaid 529 plan is usually operated by the state government, though some institutions of higher learning may offer their own plans. Prepaid 529 plans offer parents the opportunity to lock in tuition for their child at today's rates. There are two different kinds of plans: unit or contract. Unit plans sell units that are a fixed percentage of tuition (e.g., one unit is 1 percent of tuition costs). Parents can buy as many units as they want each year. Contract plans allow parents to purchase a specified number of years of tuition. While prepaid 529 plans won't increase in value, as a traditional 529 plan might, the tuition rates are guaranteed.
The stock market slump combined with rising college costs are causing many of the prepaid plans to lose money. According to an article in The New York Times, all but two of the 18 prepaid plans in existence do not have enough money to pay all of their future tuition obligations. States are taking a number of steps to deal with these losses. Texas is reducing the payout to children who choose not to attend college in Texas, Pennsylvania has begun imposing premiums on investors, and Alabama has closed its plan to new members.
For more information on how the financial crisis is affecting prepaid 529 plans, click here and here.
At the same time, SmartMoney reports that "529 Plan Fees Are Dropping." |
| BOOK REVIEW: How to Care for Aging Parents
 Virginia Morris. How to Care for Aging Parents. Workman Publishing Company, Inc. New York, NY. 2004. 691 pages.
$12.89 from Amazon.com (click on book to order)
As your parents age, their needs begin to change. How to Care for An Aging Parent -- a revised and greatly expanded edition of a book first published in 1995 -- can help you deal with these changes as they occur. The book is a comprehensive look at almost every issue you might encounter as your parents age, whether they are living on their own, with you, or in a nursing home.
The author, journalist Virginia Morris, uses a straightforward and conversational tone to discuss the various issues you may face as your parents get older. The book encourages parents and children to be upfront and talk about the issues involved in aging, and Morris offers tips to help facilitate those conversations. She emphasizes the importance of helping your parents retain independence and self respect and of taking care of yourself.
Topics covered include when to intervene in your parent's life, how to keep parents healthy, where to find help if needed, how to choose a doctor, options for housing and paying for health care, saying goodbye, and dealing with grief. Quotes from adult children dealing with these issues are scattered throughout and add a personal dimension to the book. With a 100-page "Yellow Pages" section of addresses, phone numbers, and Web pages of helpful organizations, the book is a one-stop shop for information on aging. |
Pre-Paid Funeral Plans: Buyer Beware
 Funerals rank among the most expensive purchases many consumers will ever make. A traditional funeral costs about $6,000, although "extras" like flowers, obituary notices, acknowledgment cards and limousines can bring the total to well over $10,000. Moreover, people often "overspend" on a funeral or burial because they think of it as a reflection of their feelings for the deceased.
To help relieve their families of some of these decisions, an increasing number of people are planning their own funerals, designating their funeral preferences, and sometimes even paying for them in advance. In fact, many elder law attorneys advise prepayment as a way to invest in assets that will not be countable by Medicaid or SSI.
However, consumers lose millions of dollars every year when pre-need funeral funds are misspent or misappropriated. A funeral provider could mishandle, mismanage or embezzle the funds. Some go out of business before the need for the pre-paid funeral arises. Others sell policies that are virtually worthless.
Consumers received some protection from unscrupulous funeral providers with the creation of the Funeral Rule in 1984. This rule, administered by the Federal Trade Commission (FTC), requires funeral providers to give consumers accurate, itemized price information and other specific disclosures about funeral goods and services. Unfortunately, the Funeral Rule does not apply to many of the features of pre-need contracts, which are governed solely by state law. Every state except Alabama has laws covering pre-need contracts, but protections vary widely from state to state. Some state laws require the funeral home or cemetery to place a percentage of the prepayment in a state-regulated trust or to purchase a life insurance policy with the death benefits assigned to the funeral home or cemetery. Other states, however, offer buyers of pre-need plans little or no effective protection.
Following are some questions that the FTC recommends asking before signing up for a pre-need funeral arrangement. The questions are from the FTC's excellent "Funerals: A Consumer Guide," which can be found at: www.ftc.gov/bcp/edu/pubs/consumer/products/pro19.shtm
- What happens to the money you've prepaid? States have different requirements for handling funds paid for prearranged funeral services.
- What happens to the interest income on money that is prepaid and put into a trust account?
- Are you protected if the firm you dealt with goes out of business?
- Can you cancel the contract and get a full refund if you change your mind?
- What happens if you move to a different area or die while away from home? Some prepaid funeral plans can be transferred, but often at an added cost.
In addition, find out exactly what you are paying for and compare with other funeral providers. And make sure the price is locked in and additional money won't be required at the time of death.
These pitfalls can be avoided, of course, by making decisions about your arrangements in advance, but not paying for them in advance. Be sure to tell your family about the plans you've made; let them know where the documents are filed. If your family isn't aware that you've made plans, your wishes may not be carried out. You may wish to consult an attorney on the best way to ensure that your wishes are followed.
One way to ensure there is money available to pay for the funeral is to set up a payable-on-death account (POD) with your bank. Make the person who will be handling your funeral arrangements the beneficiary (and make sure they know your plans). You will maintain control of your money while you are alive, but when you die it is available immediately, without having to go through probate.
Sometimes it's more convenient and less stressful to "price shop" funeral homes by telephone. The Funeral Rule requires funeral directors to provide price information over the phone to any caller who asks for it.
If you run into problems or have questions about your state's laws, most states have a licensing board that regulates the funeral industry. Click here for the State of Florida's Division of Funeral, Cemetery & Consumer Services. |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning including long term care insurance, Medicaid applications, home and community-based Medicaid waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as litigation.
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, CAP
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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