Scam Alert! This Social Security scam is similar to the IRS phone scams over the last few years... Always a vulnerable and popular targer of scammers, seniors are at risk of losing an entire life's savings! In 2018 alone, more than 35,000 people had already reported the scam.
Here's what to know:
As an Elder Law Attorney, “Tell me about your mother (or father)” is a question I ask someone every day. When they reply, “Well, we have had sitters come in to be with her (or him) for the last few years” I cringe every time. Because I know that in many cases, the family has been paying the sitter or caregiver in cash, with no written contract in place. Then, when we try to make the parent eligible for Medicaid, there is a problem, a big problem.
Let me tell you a story: A former client came to me for advice. Years earlier she had liquidated all of her father’s real estate for close to $250,000. Over the next four to five years she used every dime of that money to pay for caregivers for her father. She had seven ladies that she used to care for her father from week to week. Yet, when I asked the question, “did you have a contract with the caregivers?” her reply was “No, I paid them all in cash.” My heart sank as I told her, “I’m sorry, your father probably will never qualify for Medicaid.” She was shocked! She had done all the right things to care for her father, what went wrong???
A few years ago the Medicaid Manual was amended and it tightened the rules on how Medicaid would consider payments for caregivers. If you do not use a written contract, or if you did use one and that contract does not meet all of the requirements listed under the Manual, that money will absolutely be considered a gift and Medicaid will penalize you. The penalty results in a period of time that your loved one will not be eligible for Medicaid.
Reasons a PROPER Caregiver Contract is Essential!
If you regularly provide paid care to a family member, such as a parent or grandparent, it’s very important to have an experienced Elder Law Attorney (preferably a Certified Elder Law Attorney) prepare a proper caregiver contract (also known by many other names, such as a personal-care contract or a family-care contract) setting out the terms of your arrangement. And to avoid a situation such as the case described above, the terms of the agreement must be supported in advance by a proper specialist in geriatrics, typically a Geriatric Care Manager. And, you must be sure to adhere to the terms set forth in the agreement.
The following are excellent reasons to have a proper caregiver agreement:
- It is important for Medicaid eligibility: The money a parent pays to a caregiver, absent an agreement in writing, will simply be deemed a gift by Medicaid, causing a period of ineligibility during which the parent will not qualify for the Medicaid benefit. How? At the time of a parent’s Medicaid application, Medicaid will total all the payments made to a caregiver in the past 60 months and divide that total by the state’s “penalty divisor.” As an example of how this works, let’s say a parent pays a family caregiver $60,000 over the course of three years and then applies for Medicaid. Without a proper caregiver contract in place, Medicaid would deem those payments as gifts, causing a penalty period of over 10 months!
- It sets boundaries: A detailed caregiver agreement makes clear the extent of the services being provided by a caregiver and the amount of money the caregiver is getting paid. A caregiver contract sets the understanding about the requirements and limits of the relationship.
- It helps avoid misunderstandings with other family members about who may be providing care and how much money is changing hands. If the agreement doesn’t solve a particular disagreement with family members, you may be able to add something to the document, or change its terms, to address the problem.
- It offers security and peace of mind: A caregiver contract can offer caregivers security that they will not suffer undue financial consequences. At the same time, the agreement can also offer the care recipient peace of mind that she or he has a caring advocate to manage care needs.
Paying a Family Caregiver
Yes, you can pay a family member to provide care. Even though most family caregivers want to help, and feel a sense of duty to care for a loved one without pay, the fact is that it is a job – and a very difficult job with heavy time commitments and heavy physical and emotional responsibilities. Family caregivers deserve to be paid, but the payment arrangements must be done through a properly-drafted caregiver agreement that only an experienced Elder Law Attorney can prepare.
At the Estate & Elder Law Center of Southside Virginia, we prepare caregiver contracts frequently as part of our practice and often, that contract is supported by an independent evaluation that we obtain from a Doctor, Nurse Practitioner or other professional Geriatric Care Manager.
Caregivers . . . Care for Yourself and Your Loved Ones
Are you a family caregiver? You may not be aware that the month of November is recognized as National Caregivers Month! At the Estate & Elder Law Center, we recognize that caring for a loved one strains even the most resilient people. If you’re a caregiver, take steps to preserve your own health and well-being. Part of taking care of yourself is planning for your future and for your loved ones. If you have not done your own Incapacity Planning or Estate Planning, or if you are caring for a loved one without a caregiver contract in place, or if your loved one is beginning to need more care than you can handle, please contact an experienced elder law attorney immediately to make an appointment. Don’t go it alone – Help is available!
Did you know? In 2008, Congress declared the third week in October as National Estate Planning Awareness Week. This week is to be used for estate planning attorneys to spread the word about their services and why it is so important to put together an estate plan.
We think it's equally important to let seniors know the importance of planning with an elder law attorney to address the real possibility of needing long-term care.
For example, one misconception is that many people think they are too young to have a plan in place. The truth is, The sooner you plan, the less likely you will lose your savings to the high costs of long-term care! Tragedy can strike anyone at any time. It's best to hope for the best but plan for the worst.
Some other common misconceptions include:
(1) Elder law plans are just for the rich. FALSE!
The truth is, very few of us can afford to pay thousands of dollars a month out-of-pocket for care! Working with a Certified Elder Law Attorney to put a comprehensive plan in place can save you and your loved ones not just tens of thousands of dollars, but it will also lessen the emotional turmoil on your family.
(2) When I die, my kids will obviously just get everything. FALSE!
Probate court is no place any family wants to be after a loved one dies. Creating a proper elder law plan is the only sure method to stay out of the courts, avoid unnecessary court fees, and make sure that your specific wishes are carried out.
These are just a few examples. Contact us to schedule a consultation and start the process of making sure your family's future is protected both now and in the future.
Here is the scenario: You have been appointed by the court as someone's Guardian and/or conservator because it has been determined they now lack capacity due to illness or accident, and had no estate planning documents in place. Since they can no longer take care of their own affairs themselves, what happens now?
After you have been appointed Guardian and Conservator by the court over someone, there is still more to be done! Here is a list of important things you need to be aware of after the court proceedings have taken place that you will be responsible for:
- File the “Report of Guardian for an Incapacitated Adult” with the appropriate department of social services within four months of qualification. There is a $5.00 filing fee that should be made payable to Department of Social Services and sent in with the completed “Report of Guardian for an Incapacitated Adult.” You must file this report annually.
- Obtain a Federal EIN (Employee Identification Number) from the IRS. In your search engine, type “how to apply for EIN” and choose the site that has www.irs.gov as part of the link. The type of legal structure that is applying is your first question; you will choose “Trusts.” Then you will read the requested information carefully and follow the instructions.
- Open a conservatorship checking account. (You will need your EIN printout and your “Certificate/Letter of Qualification.)
- Have any income that is direct deposited into the ward’s checking account moved to be direct deposited into the conservatorship account. **If the ward is in the nursing home and going to be or is on Medicaid, we recommend having the nursing home become rep-payee.
- Once the ward’s income has been re-routed, close the personal checking account and deposit and remaining funds into the conservatorship checking account.
- If there are investment accounts, open a new account in the name of the conservatorship and transfer holdings. This can be done and kept within the same financial institution
- If there are CD’s, change ownership in the name of the conservatorship or cash in. If you cash in, be sure to have taxes withheld if applicable.
- Be sure to get a statement or history printout for any and all financial accounts to show transactions from the date you qualified to the date you closed the account. *Note if any account was held with “survivorship,” TOD (transfer on death), or POD (payable on death).
- Make sure to keep all bank statements from all accounts.
- We recommend paying expenses with checks and making a copy so there is a paper trail. Also, keep copies of all invoices, bills, etc.
- Within six (6) months of qualification, file your inventory with the appropriate commissioner of accounts. This will be the value of the ward’s assets on the exact date of your qualification. If you are unsure who your commissioner of accounts is, you can call the Circuit Court Clerk’s Office where you qualified.
- There will be an annual accounting due to the commissioner of accounts. If you are unsure of the due date, your assigned commissioner of accounts’ office will be able to provide you with the due date.
If you would like our guidance in the process, a one-time, in-person consult with our fiduciary paralegal can be scheduled for a fee of $150.00. Should you wish for our office to manage the entire process, we will be able to quote a fee after the first consultation with the fiduciary paralegal and the assets have been reviewed. There is a minimum fee of $500.00 for this service, however, an exact fee will be agreed upon before any work is done by our office.
Government programs such as Medicare, Medicaid and the Veterans Administration will cover the cost of long-term care under certain conditions. Medicare will cover rehabilitation from a hospital stay or limited care at home if there is a skilled need. The Veterans Administration will cover the cost of nursing home care if the veteran is at least 70% service-connected disabled. The VA will also cover other forms of home-based or community-based care if there is a medical need.
Based on analysis of yearly, one-on-one care hours, it is estimated that about 84% of all long-term care is not covered by government programs. Conversely, this means only 16% of long term care service hours are covered by the government. The 84% that is not covered is primarily family-provided home care to help with activities of daily living, or help with maintaining a home, providing meals and support, or care services providing supervision or companionship or providing transportation and shopping services. Care costs not covered by the government are also care provided from family out-of-pocket payments in nursing homes and assisted living facilities. Families are also hiring more and more private services to help with care within the home.
The high cost of long-term care has made planning a critically important issue for most middle class seniors and their families. In fact, most seniors will likely require some form of long-term care. Sadly, many of them are unprepared for the significant financial burdens it places on their family’s hard earned savings. Financial devastation looms large for a family facing ongoing care at a rate of up to $10,000 or more per month!
For more information on what the options are, contact us to see how we can help your family in planning for the future!
According to an article today by Associated Press, as Hurricane Dorian blows off the coast of the Carolinas up to Virginia, events continue to develop. Forecasters are predicting high storm surges and drenching rains that could trigger flooding and unleash environmental hazards in areas still recovering from the effects of last year's Hurricane Florence.
It is ideal to prepare for when the impact of it reaches Virginia, as the threat of Hurricane Dorian is understandably a serious concern. Adult children and family caregivers in the area as well as outside it no doubt find themselves feeling more than a little anxious about their senior loved one’s safety during this time.
Older adults are exceptionally vulnerable to Mother Nature’s wrath. Emergency preparedness for seniors can mean the difference between life and death. From blizzards to hurricanes, disaster planning for the elderly is an absolute must, especially for families who are separated by many miles and unable to be their elderly loved one's first line of defense in a storm. Our office, since the news of Dorian came to our attention, has been working closely with our Life Care Planning clients to make sure that they are as prepared as possible for the uncertainty of what lies ahead.
Courtesy of The American Red Cross, here is a quick list of questions to consider that your hurricane plan for yourself and your elderly loved ones should clearly address:
(1) What do I need to do to secure my home? Where will I get the supplies to do so?
(2) Who will help me prepare my home before a storm?
(3) If my home isn’t safe or if it becomes part of a forced evacuation zone, where will I go and how will I get there?
(4) What will happen to my pet? Is there a shelter near me that will accept pets?
(5) What items do I need to have ready to go if I am forced to evacuate (i.e. medications and supplies)?
(6) Who can I call if I am overwhelmed and need help?
It’s important for seniors and their loved ones to be prepared. In addition to securing trashcans and outside furniture, a storm-safe shelter in a senior’s home should be stocked with the supplies and food items necessary to ride out the storm and a few extra days. Make sure they have at least two weeks of all medications on hand including supplies needed for diabetes care and other health conditions. Stock up on non-perishable food items and water, as well as a can opener and paper products. Make sure you have a cooler or two with ice and bottled water. Check your first aid kit to see if it needs restocking and that it includes sunscreen and bug spray. Have a pet carrier, pet food and medicine and supplies in an easy to access location. Create a storm box that includes a battery-operated weather radio, several flashlights, a cell phone charger and extra batteries for all. Stash extra pillows, blankets and possibly even an air mattress in a safe space. Be sure to place copies of important medical, legal and financial papers in a secure, waterproof, durable container.
Hurricanes are strong storms that can be life-threatening as well as cause serious hazards such as flooding, storm surge, high winds and tornadoes. Learn what to do to keep your loved ones safe and be careful out there!
Check out this following link to read the original article from Associated Press: https://www.msn.com/en-us/news/us/carolinas-coast-braces-for-flooding-hazards-from-dorian/ar-AAGPh9d?ocid=spartandhp
It's a hard fact: The high cost of long-term care has made planning a critically important issue for most middle class seniors and their families. Sadly, many of them are unprepared for the significant financial burdens that it places on their family’s hard-earned savings. Financial devastation looms large for a family facing ongoing care at a rate of up to $10,000 a month! Roughly 50% of healthy Americans age 65 will eventually require some form of long-term care. This care can be nursing home care, assisted living or home care. Whatever the setting, this kind of care becomes quickly and extremely expensive. So how does one exactly pay for long-term care? Below are the following five methods:
(1) PRIVATE PAY: The first way is called private pay; you simply write the provider a check for the monthly bill from your hard-earned life's savings.
(2) LONG-TERM CARE INSURANCE: The second but better way to plan ahead and pay for long-term care is to purchase long-term care insurance. However, only about 8% of Americans have purchased long-term care insurance. By age 65, 25% of individuals are no longer insurable, making this less of a viable option for most people.
(3) MEDICARE: The third way to pay for long-term care is through Medicare. Medicare pays for some home care for people who are homebound, and it pays part of a maximum of 100 days in a nursing home if that person is receiving skilled care.
(4) VETERANS ADMINISTRATION: For those who served in the military and their spouses, there is a fourth option. The Veterans Administration helps pay for long-term care, but the benefit is very limited. Statistically, VA programs pay for less than 1% of all of the long-term care provided in the United States.
(5) MEDICAID: The fifth way is Medicaid, which to be clear, is entirely seperate from Medicare. Medicaid pays for over half of all the long-term care expenses in the United States. For all practical purposes, in the United States, the only “insurance” plan for long-term institutionalized care is Medicaid.
Medicare only pays for approximately 2% of skilled nursing care in the United States, and private insurance pays for even less. The result is that when Medicare is exhausted, most people proceed to needlessly pay out of their own pockets for long-term care until their funds are nearly depleted and they then become financially eligible for Medicaid. This is often referred to as a 'spend-down' by the department of social services or the nursing home. This process naturally impoverishes a person and their spouse if married, since BOTH person's assets are counted in a married couple situation.
As you can see, without proper planning, nursing home residents will quickly deplete their savings! Many of our clients are interested in protecting their assets from the rising cost of long-term care: We can help! Please call our office to schedule a consultation and see how we can help you and your family protect what is important for the future!
The CDC states falls among older adults are extremely common with an estimated 2.5 million older adults treated for fall injuries in the U.S. every year. An estimated 25,000 of those fall injuries result in death. Justifiably so, 8 out of 10 caregivers are worried about fall prevention for their loved ones.
With these statistics above in mind, check out the link below to research personal emergency response system and other assistive technology options available to find ones that truly enhance the lives of seniors and their families by coupling an independent lifestyle with safety and peace of mind:
We receive calls every week from families caring for a loved one whose health is starting to deteriorate, asking about getting a Power of Attorney. Sadly, far too often in the case of those suffering from Alzheimer’s or dementia, most had not done any estate planning documents prior to their worsening condition and by this point may have lost all capacity to sign legal documents! What can be done in instances where no estate planning was put in place ahead of time? The answer is often a guardianship.
By definition of the law, a guardianship is a legal relationship in which an entity or a person is named in a will or is appointed by the court to make decisions for another. One example would be in the case of minors and adults who have become incapable of taking care of their personal needs and can no longer make decisions on their own.
It is also referred to as a conservatorship on occasion, but the term “guardianship” is more frequently used. In the case of minors, the guardianship will apply until he or she is 18 years old. Any family member or close family friend can petition the court for guardianship or a government agency can petition for it.
This is also true in the case of incompetent adults, but the person or ward can select the person that he wants to be his guardian. The judge will take this into consideration before granting the guardianship. After the guardianship is obtained, the ward cannot revoke the guardianship. However, there are cases wherein temporary guardianship is given which can be terminated after achieving a certain purpose. Guardians make all decisions for and on behalf of their wards but must not benefit from transactions made for his ward.
A guardianship is meant to ensure that a minor or an incapacitated adult receives all the necessary care he needs. Every decision that a guardian makes on behalf of his ward must be for the benefit and well-being of his ward.
A power of attorney, on the other hand, is a written, legal document wherein an individual called “the principal” appoints another individual called “the agent” to act on his behalf; authorizing the agent to make transactions for the principal.
Usually, a power of attorney is made when a principal sees that he is becoming unable to handle some of his affairs. This is usually done when he becomes ill or has been in an accident, or when he goes out of town and there are financial transactions that have to be done in his absence. This type of planning should all be done with an eye towards planning for the future, and avoiding possible incapacity. It is a written agreement between the agent and the principal whose consent is necessary for the power of attorney to take effect. Should the principal see that the power of attorney is no longer needed, he can revoke or terminate it at any time.
The power of attorney documents produced by our firm are two separate documents: Durable (for financial matters) and Healthcare (for medical and health-related matters). A Living Will is typically paired with the Healthcare Power of Attorney to address end-of-life decisions. While these documents are very thorough, the only thing worse than not having a power of attorney is having one, but never actually having that conversation with your agent as to what your actual wishes would be if you were unable to communicate them yourself! You are ideally trying to create the situation where someone is not trying to decide end-of-life decisions for you, but to merely voice what they know you would want in those circumstances! The power of the agent is limited only to the content of the agreement, and should be done based on the client’s own specific needs and situation both now and in the future.
While guardianship requires the guardian to report to the court and other agencies the financial dealings made for the ward to determine where the ward’s money went, a power of attorney does not require the agent to account for every penny that he spent.
The best advice of course, is to plan ahead, as no one knows what the future holds! For those situations where time has run out in regards to planning and estate planning documents are no longer possible, a guardianship is the more expensive and time-consuming route, but is often the only answer. For a general overview of the process check out this link:
Congratulations go out to our firm's Managing Attorney Robert W. Haley, Certified Elder Law Attorney, who has been named to the Top Attorneys Super Lawyers List again for several years running for 2019!
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Selection for inclusion on this list is determined by independent research and peer nomination and evaluation.
For more information on the Super Lawyers selection process, check out the link below:
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