Wednesday, July 27, 2016

How to Find an Elder Law Attorney

Today’s Elder Care Matters Q&A is about How to Find an Elder Law Attorney


Question:  I’m trying to find an Elder Law Attorney.  What steps should I take to locate a competent, caring attorney who can help me with our family’s Elder Care Matters?


Answer:  Legal problems that affect the elderly are growing in number. Our laws and regulations are becoming more complex. Actions taken by older people with regard to a single matter may have unintended legal effects. It is important for attorneys dealing with the elderly to have a broad understanding of the laws that may have an impact on a given situation, to avoid future problems.


Unfortunately, this job is not made easy by the fact that Elder Law encompasses many different fields of law.


Some of these include:


  • Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home

  • Medicaid

  • Medicare claims and appeals

  • Social security and disability claims and appeals

  • Supplemental and long term health insurance issues.

  • Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity.

  • Conservatorships and guardianships

  • Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents

  • Probate

  • Administration and management of trusts and estates

  • Long-term care placements in nursing home and life care communities

  • Nursing home issues including questions of patients’ rights and nursing home quality

  • Elder abuse and fraud recovery cases

  • Housing issues, including discrimination and home equity conversions

  • Age discrimination in employment

  • Retirement, including public and private retirement benefits, survivor benefits and pension benefits

  • Health law

  • Mental health law

Most Elder Law attorneys do not specialize in every one of these areas.


So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles. You will want to hire the attorney who regularly handles matters in the area of concern in your particular case and who will know enough about the other fields to question whether the action being taken might be affected by laws in any of the other areas of law on the list.


For example, if you are going to rewrite your will and your spouse is ill, the estate planner needs to know enough about Medicaid to know whether it is an issue with regard to your spouse’s inheritance.


Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring to their practice knowledge of the elderly that allows them and their staff to ignore the myths relating to aging and the competence of the elderly. At the same time, they will take into account and empathize with some of the true physical and mental difficulties that often accompany the aging process. Their understanding of the afflictions of the aged allows them to determine more easily the difference between the physical versus the mental disability of a client. They are more aware of real life problems, health and otherwise, that tend to crop up as persons age. They are tied into a formal or informal system of social workers, psychologists and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.


Finding an Elder Law attorney


Your first question may be: How do I find an Elder Law attorney? Before making the effort, step back a moment and try to determine whether you actually have a legal problem in which an attorney needs to be involved. If you’re not sure, ask your clergy, your social worker, your financial advisor, or a trusted friend to help you decide whether this is a legal issue rather than a medical or a social services issue. Legal expertise is expensive and it serves you well to know that you actually need legal assistance before seeking an attorney.


There are many places to find an attorney in your city or state who specializes in problems of the elderly. This Web site, ElderCareMatters.com, includes a searchable directory of attorneys with expertise in a wide range of Elder Care Matters.  In addition to finding Elder Law attorneys near you, this site provides you with substantive, up-to-date information to help you plan for and deal with your family’s elder care matters.


If you know any attorneys ask them for a referral to an elder law attorney. An attorney is in a good position to know who handles such issues and whether that person is a good attorney. Such persons are often the best and safest sources of referrals.


Ask Questions First


Ask lots of questions before selecting an Elder Law attorney. You don’t want to end up in the office of an attorney who can’t help you. Start with the initial phone call. It is not unusual to speak only to a secretary, receptionist or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.


  • How long has the attorney been in practice?

  • Does his/her practice emphasize a particular area of law?

  • How long has he/she been in this field?

  • What percentage of his/her practice is devoted to elder law?

  • Does he/she have any advanced designations – CELA, Fellow or CAP

  • Is there a fee for the first consultation and if so, how much is it?

  • Given the nature of your problem, what information should you bring with you to the initial consultation?

The answers to your questions will assist you in determining whether that particular attorney has those qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.


Once You Have Found an Attorney


When you have found an appropriate attorney, make an appointment to see him/her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation.  After you have explained your situation, ask:


  • What will it take to resolve it?

  • Are there any alternative courses of action?

  • What are the advantages and disadvantages of each possibility?

  • Who will handle your case?

  • Has that attorney handled matters of this kind in the past?

  • If a trial may be involved, does he/she do trial work? If not, who does the trial work? If so, how many trials has he/she handled?

  • Is that attorney a member of the local bar association, its health advocacy committee, or trust and estates committee?

  • Is that attorney a member of the National Academy of Elder Law Attorneys?

  • How are fees computed?

  • What is his/her estimate of the cost to resolve your problem and how long will it take?

Discussing Fees


There are many different ways of charging fees and each attorney will choose to work differently. Be aware of how your attorney charges. You will also want to know how often he/she bills. Some attorneys bill weekly, some bill monthly, some bill upon completion of work. Ask about these matters at the initial conference, so there will be no surprises! If you don’t understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.


Some attorneys charge by the hour with different hourly rates for work performed by attorneys, paralegals and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.


In addition to fees, most attorneys will charge you out-of-pocket expenses. Out-of-pocket expenses typically include charges for copies, postage, messenger fees, court fees, disposition fees, long distance telephone calls and other such costs. Find out if there will be any other incidental costs.


The attorney may ask for a retainer. This is money paid before the attorney starts working on your case. It is usually placed in a trust account and each time the attorney bills you, he/she pays himself or herself out of that account. Expenses may be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.


Get It in Writing


Once you decide to hire the attorney, ask that your arrangement be put in writing. The writing can be a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. REMEMBER– even if your agreement remains oral and is not put into writing, you have made a contract and are responsible for all charges for work done by the attorney and his/her staff.


A positive and open relationship between attorney and client benefits everyone. The key to getting it is communication. The communication starts with asking the kinds of questions contained in this document. Use the answers to the questions as a guide not only to the attorney’s qualification, but also as a way of determining whether you can comfortably work with this person.


  • If your concerns are given short shrift;

  • if you don’t like the answers to these questions;

  • if you don’t like the attorney’s reaction to being asked all those questions or if you simply do not feel relaxed with this particular person

DO NOT HIRE THAT PERSON. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties which may arise between the two of you. If you take the time to make sure that you are happy right at the beginning you can make this a productive experience for both you and the attorney.


You will thank yourself, and your attorney will thank you.


Today’s Answer was provided by Stephen J. Silverberg, Esq., of  the Law Office of Stephen J. Silverberg in Roslyn Heights, New York.  Attorney Silverberg is a Partner Member in the National ElderCare Matters Alliance.


21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.



#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys, #findmedicaidattorneys



How to Find an Elder Law Attorney

Tuesday, July 26, 2016

Elder Care / Senior Care Article

This week’s Elder Care article was written by Brian Chew, Esq., Founding Partner of OC Wills & Trust Attorneys in Irvine, California.  Attorney Chew is a Partner member of the national ElderCare Matters Alliance.


TITLE:  6 Events Which May Require a Change in Your Estate Plan


Creating a Will is not a one-time event. You should review your Will periodically, to ensure it is up to date, and make necessary changes if your personal situation, or that of your executor or beneficiaries, has changed. There are a number of life-changing events that require your Will to be revised, including:


  1. Change in Marital Status: If you have gotten married or divorced, it is imperative that you review and modify your Will. With a new marriage, you must determine which assets you want to pass to your new spouse or step-children, and how that may relate to the beneficiary interest of your own children. Following a divorce it is a good practice to revise your Will, to formally remove the ex-spouse as a beneficiary. While you’re at it, you should also change your beneficiary on any life insurance policies, pensions, or retirement accounts. Estate planning is complicated when there are children from multiple marriages, and an attorney can help you ensure everyone is protected, which may include establishing a trust in addition to the revised Will. Depending on jurisdiction, this may also apply to couples who have established or revoked a registered domestic partnership. If one of your Will’s beneficiaries experiences a change in marital status, that may also trigger a need to revise your Will.

  2. Births: Upon the birth of a new child, the parents should amend their Wills immediately, to include the names of the guardians who will care for the child if both parents die. Also, parents or grandparents may wish to modify the distribution of assets provided in their Wills, to include the new addition to the family.

  3. Deaths or Incapacitation: If any of the named executors or beneficiaries of a Will, or the named guardians for your children, pass away or become incapacitated, your Will should be revised accordingly.

  4. Change in Assets: Your Will may need to be changed if the value of your assets has significantly increased or decreased, or if you dispose of an asset. You may want to modify the distribution of other assets in your estate, to account for the changed value or disposition of the asset.

  5. Change in Employment: A change in the amount and/or source of income means your Will should be examined to see if any changes must be made to that document. Retirement or changing jobs could entail moving to another state, thus subjecting your estate to the laws of that state when you die. If the change in income modifies your investing, saving or spending habits, it may be time to review your Will and make sure the distribution to your beneficiaries will be as you intended.

  6. Changes in Probate or Tax Laws: Wills should be drafted to maximize tax benefits, and to ensure the decedent’s wishes are carried out. If the laws regarding taxation of the estate, distribution of assets, or provisions for minor children have changed, you should have your Will reviewed by an estate planning attorney to ensure your family is fully protected and your wishes will be fully carried out.

21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with this Elder Care Matter or with any Elder Care / Senior Care issue, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.


  1. ElderCareMatters.com

  2. ElderCareMattersBlog.com

  3. ElderCareWebsites.com

  4. ElderCareAnswers.us

  5. ElderCareArticles.us

  6. ElderCareProfessionals.us

  7. ElderLawAttorneys.us

  8. EstatePlanningAttorneys.us

  9. FindDailyMoneyManagers.net

  10. FindElderCareMediators.net

  11. FindElderLawAttorneys.net

  12. FindEstatePlanningAttorneys.net

  13. FindGeriatricCareManagers.net

  14. FindHomeCareProviders.net

  15. FindLongTermCareInsurance.net

  16. FindMedicaidAttorneys.net

  17. FindProbateAttorneys.net

  18. FindSeniorLivingCommunities.net

  19. FindSeniorMoveManagers.net

  20. FindSpecialNeedsAttorneys.net

  21. FindVAAccreditedAttorneys.net

#eldercare, #seniorcare, #eldercarematters, #seniorcarematters, #eldercarearticles, #seniorcarearticles, #estateplanningarticles



Elder Care / Senior Care Article

Friday, July 8, 2016

Today's ElderCare Matters Q&A is about Online Estate Planning Documents

Question:  Would you please provide us with your comments regards the use of online estate planning documents?


Answer:  In estate planning, one size does not fit all. Over the years, I have found that no two families are alike.  Each family has unique issues and online documents typically cannot address those issues.  If your issues are overlooked or ignored, your estate plan will probably not work the way you intended. Most online documents lack the proper customization you need to address these overlooked or ignored issues.


  • For example, when you begin the online document process, the software will ask you for basic information such as who you want to serve as your children’s guardian under your Will. After careful consideration, you determine that you want your sister and her husband (your brother-in-law) to serve as co-guardians of your children under your online Will.  After completing and signing your Will, you think your children will be properly cared for if something happens to you.  However, do you want your brother-in-law raising your children if he and your sister get divorced or if your sister passes away?  As a named co-guardian, your brother-in-law can present a strong case to the court that he should raise your children pursuant to the Will.  Although it was your intention for him to raise your children with your sister, the Will does not address what happens upon death or divorce.  An estate planning attorney should be able to recognize this co-guardian issue and could implement the appropriate contingency in your Will that would remove him as guardian upon your sister’s death or divorce.  If you use online documents to name your children’s guardian, you might be unaware of this issue or unable to customize your documents to address that concern.

  • Furthermore, a lack of customization with online documents might cause the inclusion of wrong provisions in your documents. One essential estate planning document is the financial power of attorney (POA).  This document allows your designated agent to make financial decisions for you on your behalf.  A POA usually contains large amounts of standard boilerplate provisions that can be confusing to some people and may not be applicable to your situation.  For example, buried in your online POA might be a provision that allows your agent to make unlimited gifts to anyone.  For some, unlimited gifting might be necessary.  For others, unlimited gifting simply gives your agent a wonderful opportunity to deplete all of your assets.  Unfortunately, elder abuse is very common and it’s usually done by those who are appointed as POA.

Online document providers are not attorneys and do not counsel and recommend what provisions you should have in your documents.  Online providers do provide an option for you to consult with an attorney.  Will that attorney practice near you and be available to meet with you face to face?  Will you be able to select an attorney that has the experience in estate planning that you need?


In conclusion, those who use online estate planning documents might think that estate planning is as simple as filling names into blanks.  In reality, estate planning is complicated and needs to be customized to your specific needs even in the simplest of situations.  Simply filling in blanks can cause chaos for your loved ones down the road.  Online estate planning websites want you to believe that you have peace of mind that your affairs will be in order because ignorance is bliss! It has been often said that every attorney who represent himself or herself is a fool.


Today’s Answer was provided by William E. Hesch, Esq., of The William E. Hesch Law Firm in Cincinnati, Ohio.  Attorney Hesch is a Partner Member in the National ElderCare Matters Alliance.


21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.



#eldercarematters, #eldercare, #eldercareanswers, #seniorcareanswers,  #eldercaredirectories, #seniorcaredirectories, #findseniorcareprofessionals, #findseniorcareexperts, #elderlawanswers, #seniorcare, #seniorcarematters, #findeldercareprofessionals, #findelderlawattorneys, #findestateplanningattorneys, #findmedicaidattorneys


 



Today"s ElderCare Matters Q&A is about Online Estate Planning Documents

Thursday, July 7, 2016

Elder Care / Senior Care Article

This week’s Elder Care article was written by Lauren Spiglanin, Owner and Founder of Family Connect Care in Rancho Palos Verdes, California.  Ms. Spiglanin is a Partner member of the national ElderCare Matters Alliance.


Elder Care / Senior Care Article


TITLE:  Are we born happy and positive?


Turns out we are NOT born happy and positive, but we can’t help it. It’s not our fault that we have difficulty being happy. Many of us feel happy is a thing you have to schedule.


Sadly, we aren’t wired for it.


Our nature and historic DNA predisposes us to negativity – that pesky fight or flight and survival of the fittest. Our earliest ancestors spent most of their time in avoidance – avoiding hunger, avoiding being eaten, and fighting to survive.


Our predilection to avoid negative outcomes has us prewired for a negative bias. It leads our brain into using up to two thirds of its neurons detecting negativity: should I fight or should I go? That constant focus is further complicated because it’s stored in our long term memory. We hold on to negativity longer, making bad feelings stronger than good.


It’s not all gloom and doom though.


We can turn it around, and we should, because stress takes a toll on us with higher blood pressure, increased aches and pains, cognitive impairments, and a diminished quality of life.


We all seem to have time for stress in our lives. In my work, I see that family caregivers of those living with a loved one who has Alzheimer’s/Dementia appear to have a particularly high level of stress.


So, how do we do it? How do we GET happy?


Since we spend a great deal on negativity, we have to rewire ourselves, retrain our brains. It’s the pursuit of positive experiences and the techniques associated with storing and holding on to them that leads to the Holy Grail of HAPPINESS.


Here are 4 Happy Practices to rewire and retrain your brain

1. Practice Healthy Habits


Not surprisingly, eating a healthy diet and adopting a regular exercise routine allows us to feel better. It doesn’t take more time to eat right. It takes focus on feeling better, which leads us to a more positive outlook.


Okay, exercising might take some extra time. Instead of watching another episode of Real Housewives of Wherever, try just 20 minutes of walking a day. That alone can lower blood pressure and reduce stress levels. The National Institutes of Health suggests that aerobic exercise is associated with a reduced risk of cognitive impairment and dementia. It may even slow the progression of dementia.


2. Practice remembering the positive moments


Do you know a particularly happy person? They seem alive, walking with a bounce in their step and nothing ever seems to get them down, leading you and others to believe that nothing bad or negative happens to them. That’s simply not true. Bad things happen to everyone but, if we focus on finding positive moments, we don’t have to see the negative or, if we do, we learn to let it go quickly.


To rewire ourselves we must spend as much time with our positive moments as possible. We currently take time to ruminate on the negative so let’s take THAT time to reminisce on the positive.


Journaling helps to savor the moments by spending more time on it. Write about how it felt and what you saw. Think of colorful adjectives to describe the experience. Studies suggest that something as simple as “listing” our gratitude’s – or counting our blessings is effective in holding positive moments.


We ask family care givers to focus on the good days — Take MORE time to consume those good-day-making moments. Was Dad more lucid today, resulting in the two of you having a great conversation? Wrap your arms around that conversation. Write about it, feel it, experience it. It was a good day!


Consider other moments you might experience. Every moment has the ability to envelop all our senses, enabling the ability to build a positivity bias.


3. Practice flipping the script


The adage when life gives you lemons, make lemonade is a great example of a script flip. We get to control how we imprint what happens to us. Now there’s a time-saver.


For family caregivers living with an Alzheimer’s sufferer, new behaviors seem to appear out of nowhere that we find unpleasant and over which we have no control. Such might be the case when Mom arrives to the breakfast table wearing nothing more than a strand of pearls and a smile.


You have some choices: get angry, reason with her, or simply say —


Nice pearls Mom. Let’s make a fashion statement and pair it with that pink robe you have then pour her a cup of coffee.


Questioning the behavior or displaying anger doesn’t help Mom and it certainly doesn’t help you. Letting it go helps you, reframing the situation (or flipping the script) helps you.


4. Practice Mindful Meditation


Meditaion is one of, if not the, most important way of developing focus on positivity. It’s like a clearing of the brain. We are returning our brains to a state of equilibrium which allows us to recharge, replenish, and rest. Through it, we develop greater present moment awareness and emotional regulation–in other words–we are less stressed.


The benefits cannot be overstated. Studies show that we can change the structure of our brains in as little as 8 weeks of meditation. We gain greater clarity, feelings of calm, and even increased cognitive ability as the practice, “changes gray matter concentration in brain regions involved in learning and memory processes and emotional regulation.”


With the ability to reduce stress, lower blood pressure, and increase cognitive ability, family members caring for someone with Dementia/Alzheimer’s will benefit greatly from the practice. What’s more promising is the growing body of evidence supporting the positive aspects of meditation in that it made seniors feel less lonely and isolated — a link to an increased risk of developing the disease.


There are fundamental ways we ask family caregivers to prepare themselves for the journey from addressing legal and financial issues to learning as much about the disease as possible. Self-care is paramount for the journey too. It gives you, the family caregiver, the strength and tools for navigating the road ahead. Taking time to adopt Happy Practices will go a long way in ensuring your own self-care.


21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with this Elder Care Matter or or with any Elder Care / Senior Care issue, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.


  1. ElderCareMatters.com

  2. ElderCareMattersBlog.com

  3. ElderCareWebsites.com

  4. ElderCareAnswers.us

  5. ElderCareArticles.us

  6. ElderCareProfessionals.us

  7. ElderLawAttorneys.us

  8. EstatePlanningAttorneys.us

  9. FindDailyMoneyManagers.net

  10. FindElderCareMediators.net

  11. FindElderLawAttorneys.net

  12. FindEstatePlanningAttorneys.net

  13. FindGeriatricCareManagers.net

  14. FindHomeCareProviders.net

  15. FindLongTermCareInsurance.net

  16. FindMedicaidAttorneys.net

  17. FindProbateAttorneys.net

  18. FindSeniorLivingCommunities.net

  19. FindSeniorMoveManagers.net

  20. FindSpecialNeedsAttorneys.net

  21. FindVAAccreditedAttorneys.net

#eldercare, #seniorcare, #eldercarematters, #seniorcarematters, #eldercarearticles, #seniorcarearticles



Elder Care / Senior Care Article

Thursday, May 19, 2016

Today's ElderCare Matters Q&A Focuses on Whether Living Longer is Worth It If You’re Not Living Healthy

Question:  Is Living Longer Worth It If You’re Not Living Healthy?


Answer:  While more people are celebrating triple-digit birthdays than ever before, many have to take their insulin shot before enjoying a piece of birthday cake. Older adults are the largest consumer of medications with more than 40 percent of people over age 65 taking five or more prescriptions. While new medical interventions have significantly improved longevity, in some cases Western medicine may be a crutch for living with chronic diseases rather than making lifestyle changes.


According to seven papers published recently by the Lancet, people worldwide are living longer but sicker. Advances in medical science and drastic improvements in sanitation have decreased the amount of premature deaths and allowed people to live into old age—but at what cost?


The report is the first expansive, global look at life expectancy and health threats involving more than 480 researchers in 50 countries. Based on the data they gathered from surveys, censuses, and studies, the greatest global contributors to the health burden are chronic disease, injuries, mental health conditions, and joint and bone diseases. To give perspective, take a look at some of the eye-opening statistics presented in the report:


  • In people aged 15-49, diabetes is a bigger killer in Africa than in Western Europe (8.8 deaths vs. 1 death per 100,000).

  • Globally, heart disease and stroke remain the top killers.

  • Lung cancer moved to the 5th cause of death globally, while other cancers including those of the stomach, liver, and colon are also in the top 20.

This report begs the question, “Is living longer worth it if you are not living healthy?” Preventative medicine is a growing trend in which diet, exercise, and lifestyle play a major role. Instead of treating medical conditions when they arise, incorporating a healthy lifestyle may decrease your risk of health complications and increase your quality of life as you age.


With about four out of five seniors affected by a chronic condition such as heart disease, hypertension, and diabetes, decreased quality of life is not the only consequence—medical care is extremely costly. According to the American Hospital Association, Medicare costs are skyrocketing. “People with chronic disease are more likely to be hospitalized than those without, and the resources required for each episode of care are greater. This translates into higher spending overall.”


Healthy Living does not just add years to your life, but adds life to your years. In the end, your health is your choice. Choose wisely.


If you are looking for solutions to help you with weight loss, energy & performance, healthy aging and wealth creation, then please contact us so that we may guide you along your path to a healthier, happier YOU.



Today"s ElderCare Matters Q&A Focuses on Whether Living Longer is Worth It If You’re Not Living Healthy

This Week's Elder Care / Senior Care Article

TITLE:  Medicaid Planning: The Importance of a Well Drafted Power of Attorney


This is a recent Pennsylvania Superior Court case that highlights how important a power of attorney can be in proper planning. In this case an executor who was also the agent under a power of attorney for the decedent was forced to account for his use of the power of attorney prior to the death of the decedent. The objections to how the power of attorney was used were not appealed so we did not get all of the details on the document itself. However, the opinion does shed some light, at least by inference, on Medicaid planning with a power of attorney.


Briefly, Medicaid planning is a process where someone accelerates their eligibility for Medicaid (Medical Assistance in PA) by restructuring or transferring assets so that they meet the financial qualifications for Medicaid eligibility sooner and preserve more resources for their loved ones. Sometimes this restructuring is done directly by the applicant (usually an older or disabled adult), through their agent under a power of attorney or by their legal guardian. Today courts are more likely to allow guardians to engage in this planning to protect the healthy spouse, less so to protect an inheritance for the children unless one or more is disabled or a minor. There has been some discussion, but few cases, as to whether a guardian has the power to engage in this planning for other purposes given that a guardian should be able to do anything the incapacitated person can do for him or herself.


Frequently this type of planning is performed via a power of attorney as in the Binnig case. While the details were not provided in the case as to the terms of the power of attorney, it was abundantly clear that the power of attorney lacked certain provisions that allowed for the transfer of assets that occurred prior to death (thereby reducing the size of the estate and causing another beneficiary to object). Not only does the power of attorney need to allow the administrative function of the transfers (i.e. the ability to convey real estate or transfer assets in a bank or brokerage account) but it needs to clearly identify the reasons why the transfers may occur (Medicaid or Asset Protection Planning). An agent under a power has a fiduciary obligation to the principal (the person who authorizes the agent to act on the principal’s behalf). Therefore he or she cannot simply transfer assets of the principal to him or herself unless doing so is in the best interest of the principal absent authority in the power of attorney to do so.


One can infer from the Court’s opinion that, had the power of attorney been properly drafted with this type of planning in mind and discussed with the principal at the time of execution, the plan would have been carried out and the objections dismissed. Particularly after Act 95 of 2014 where sweeping changes were made to the requirements of powers of attorney in Pennsylvania, it is important that you review your financial powers of attorney to make sure your agent has the ability to do what you would want them to do if you are unable to act.


This article was written by Robert M. Slutsky, Esq., of the law firm Robert Slutsky Associates in Plymouth Meeting, Pennsylvania.  Mr. Slutsky is a Partner member of the national ElderCare Matters Alliance.


21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with this Elder Care Matter or or with any Elder Care / Senior Care issue, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.


  1. ElderCareMatters.com

  2. ElderCareMattersBlog.com

  3. ElderCareWebsites.com

  4. ElderCareAnswers.us

  5. ElderCareArticles.us

  6. ElderCareProfessionals.us

  7. ElderLawAttorneys.us

  8. EstatePlanningAttorneys.us

  9. FindDailyMoneyManagers.net

  10. FindElderCareMediators.net

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  12. FindEstatePlanningAttorneys.net

  13. FindGeriatricCareManagers.net

  14. FindHomeCareProviders.net

  15. FindLongTermCareInsurance.net

  16. FindMedicaidAttorneys.net

  17. FindProbateAttorneys.net

  18. FindSeniorLivingCommunities.net

  19. FindSeniorMoveManagers.net

  20. FindSpecialNeedsAttorneys.net

  21. FindVAAccreditedAttorneys.net

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This Week"s Elder Care / Senior Care Article

Monday, May 2, 2016

Today's Elder Care Matters Q&A is about Transferring Title of Home for Medicaid Purposes

My mother is 83 with dementia. It’s to the point that she needs nursing home care. I have been her caretaker for the last 4 years. The home we live in is in both of our names. We want to transfer into my name only. She will have to go on Medicaid.  May I have your advice please as to the proper way of handling this?


Answer: You need to meet immediately with an Elder Law Attorney who is knowledgeable about Medicaid in your state. First it is necessary to address the issue of authority to transfer the home. Does your mother have mental capacity to sign legal documents? It is important to understand that capacity is a legal issue, not a medical one. Further, there are multiple forms of capacity, most commonly testamentary capacity and contractual capacity. A medical diagnosis is not determinative of capacity. There are set rules for determining capacity. However it is important to understand that capacity can fluctuate from day to day or based upon the hour of the day. Individuals with dementia can suffer from something called sundowners, whereby they may have capacity early in the morning, but lack it by the end of the day. So, the first thing you need to do is work with an Elder Law Attorney to determine if your mother currently has legal capacity. If your mother currently has capacity, she can sign the deed without the need for a power of attorney, though you certainly want Durable Powers of Attorney for Health and Durable Powers of Attorney for Property to be able to assist her.


Assuming that she lacks capacity, but has Powers of Attorney in place, the next question is whether the Durable Power of Attorney grants the agent authority to gift or transfer property and if you are the named agent whether it also allows for self-dealing in certain circumstances. Most people do not understand that all Durable Powers of Attorney are not the same. While most States have a statutory form, which is what many people use without modification, the Durable Power of Attorney statutes are designed to allow significant modifications to the extent and nature of the powers granted. Many people and Attorneys believe that a standard form covers everything, frequently relying on the apparent broad authority granted on the face of the document. Unfortunately that is not true. As an Elder Law Attorney the Durable Powers of Attorney I prepare for my Clients contain substantial modifications which allow the agent to take specific actions, including steps to transfer property to a child caregiver under Medicaid.


It is also essential to understand that Medicaid, unlike Medicare, is not a matter of right. You must understand that the burden of proof is on you to establish that you meet all the criteria to qualify. Unfortunately while the laws are published, the State agencies in charge of Medicaid frequently do not publish or advise you what exactly is required to establish your rights. In most States there has been active efforts to reduce the number of people on Medicaid and whether it has been done by changing the statutes or by modifying the procedural requirements, both written and unwritten, large numbers of qualified individuals that have had their applications denied because of a naïve belief that since they meet the general legal standards that the State will automatically approve them. Jointly owning the property with your Mother does not mean that you can keep the house and protect your mother. It is imperative that you retain an experienced Elder Law Attorney immediately if you seek to protect your claim to the home while still getting your mother qualified for Medicaid payment for her care. Good Luck.


Illinois Medicaid Attorney




Today’s Answer was provided by James C. Siebert, Esq., of The Law Office of James C. Siebert & Associates in Arlington Heights, Illinois.  Attorney Siebert is a
Partner Member in the National ElderCare Matters Alliance.


 


 


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If you need help in planning for and/or dealing with Medicaid Issues or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.



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Today"s Elder Care Matters Q&A is about Transferring Title of Home for Medicaid Purposes