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Issues from Ineffective or Contradictory Estate Plan

SEPTEMBER 10, 2018
PAUL PREMACK
ARTICLES, ESTATE PLANNING, PROBATE
This article was originally posted in as a column at www.mysanantonio.com

Dear Mr. Premack: I am in my second marriage. My husband’s first wife died years ago with a probated will leaving the house to him. He has grown children, all married. We remodeled the home together and after we were married two years signed and recorded a gift deed giving me an undivided 50 percent interest in the house. He also made a will that says I can live the house for my lifetime but when I die the house will transfer to his children. I see a conflict between the will and the deed. Does his will make my 50 percent interest disappear? Does the will or the gift deed govern when he dies? If the house was sold, would the whole price go into his estate? Additionally, my husband and I also signed a Revocable Transfer on Death deed. But the attorney did not file it until the day after my husband died. My probate attorney thinks the TOD deed wasn’t effective and that the will and gift deed are the key documents now. – FJ

You have already hired legal counsel (your probate attorney). You should ask these questions of your attorney and rely on the advice your attorney shares with you. I can use your situation as an example for other readers, but since your short letter cannot tell me all the details you have shared with your probate attorney you should rely on that attorney for a specific legal answer.

For my other readers: fundamentally, her husband owned his home 100% after the probate of his first wife. He then signed a gift deed transferring 50% to wife number two. When the gift deed was signed and recorded, wife number two received 50% undivided interest as her separate property.

Her husband also made a will in which he said she can live in the house for life, but it goes to his children when she dies. In a will, a person can only dispose of that which the person owns. Her husband owned (after the gift deed) his 50% undivided separate property interest in the house. In his will he can only dispose of his 50% share; he cannot direct her 50% share. Further, his statement that she can live in the house for life can be interpreted in two ways. Either 1) he was referring to her statutory homestead occupancy right, or 2) he was actually giving her a life estate in his 50% share of the house.

In any event, the will must bow to the gift deed. She owns her 50% share, and her husband’s will cannot dispose of her 50% share. The house cannot be sold without her voluntary consent. If it is sold, then she gets no less than the value of her 50%, while the value of his 50% goes into his estate to be distributed according to the terms of his will.

She mentions a Revocable Transfer of Death (TOD) deed. The Texas Estates Code was modified in 2015 to allow TOD deeds, and they have proven to be somewhat problematic. For instance, the law does not allow an Agent under a Durable Power of Attorney to sign a TOD deed for the owner. Also, a perfectly written, signed, and notarized TOD deed must, by law, be recorded before the date of the transferor’s death; if not timely recorded, the TOD deed is void. If married people sign a TOD deed and later get divorced, and the court revokes the deed as part of the divorce, the TOD deed still passes title unless the court order is recorded before the date of the transferor’s death. TOD deeds should never be used without the advice of an experienced Elder Law Attorney.

In her situation, the TOD deed was not recorded prior to her husband’s date of death and is consequently ineffective. Her probate attorney is correct that the will and gift deed are now the key documents. All other readers: if you are in a second marriage, be sure to consult with a qualified Elder Law Attorney about your legal plans, be sure you have a thorough marital property agreement, and be sure your legal rights will be honored by your spouse’s first family.

Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.

This article was originally posted at https://www.mysanantonio.com/life/life_columnists/paul_premack/article/Issues-from-ineffective-or-contradictory-estate-13181817.php  

Elder Law Attorneys Offer Advice for Getting Older

SEPTEMBER 27, 2018

NELF PRESIDENT AMOS GOODALL

ARTICLES, END OF LIFE ISSUES, ESTATE PLANNING, LONG TERM CARE, SENIOR CARE

STATE COLLEGE, Pa. (Sept. 14, 2018) – When it comes to elder law advice, there’s plenty of misinformation. As the president of the National Elder Law Foundation, Amos Goodall has made it his mission to get the public thinking about what comes next.

In August, Goodall recently appeared on “Parents Are Hard to Raise,” an international podcast that features thought leaders in the elder care community, to talk about what the average Joe needs to know about elder law attorneys.

“Well I usually say that if you’re old, if you think you may get old someday, or if you know someone who is old, you should at least think about an elder law attorney,” Goodall said during the interview.

“We talk about we do estate planning. We do capacity planning. We do fiduciary rights. One of the things we’re best known for is a public benefits advice. And we do all these same things for families with children with special needs.”

Goodall knows a thing or two about elder law. He’s been practicing in State College, Pennsylvania, since 1976 and has been recognized by Philadelphia Magazine as a Super Lawyer in elder law every year since the category was created.

Since assuming the presidency of the National Elder Law Foundation in June, Goodall has been on a campaign to inform the public about all the problems Certified Elder Law Attorneys (CELAs) can solve.

“If you want to say what’s going to happen to your things after you die, you need to do an estate plan. And there’s so many different wrinkles that an attorney can help with,” Goodall said.

“For example, do you have a child who has special needs? If you don’t have a will and the property all goes to the child, will that impair their ability to receive benefits? Well, you know, that’s why you need to talk to a certified elder law attorney.”

“There may be good lawyers who do not have the elder law certification (CELA),” Goodall said. “But the gold standard is this elder law certification.”

Elder Law: New rules make changes to veterans’ needs-based government benefits

NOVEMBER 14, 2018

WESLEY E. WRIGHT AND MOLLY DEAR ABSHIRE

ESTATE PLANNING, SENIOR CARE, VETERANS

On Sept. 18, the Department of Veterans Affairs published new rules regarding needs-based, non-service related governmental benefits for veterans and their spouses. These benefits are commonly known as Aid and Attendance benefits. The new rules became effective Oct. 18.

Aid and Attendance, along with another needs-based benefit called Housebound Allowance, provide monthly cash assistance paid in addition to a monthly means-tested pension afforded needy veterans who have a discharge other than a dishonorable one and who served at least 90 days in active military duty with at least one day during wartime. This monthly cash assistance is a worthwhile benefit to many veterans who meet the eligibility criteria as it gives them cash to pay for necessary care at home or care in an assisted living center.

The new rules establish a bright-line net worth limit for pension entitlement. This is a drastic change to the prior eligibility criteria, which considered multiple factors, sometimes resulting in inconsistent outcomes among similarly situated claimants.

The net worth limit now counts the assets and annual income of the claimant according to the standard maximum Community Spouse Resource Allowance (CSRA) promulgated by Congress for Medicaid eligibility. The current CSRA rules allow $123,600 in countable assets. When calculating net worth, the VA will also consider the income and assets of others living in the primary residence, such as an adult child. Additionally, the VA considers the assets of a veteran’s spouse, even if they don’t live together. The VA also considers the veteran’s tangible personal property in calculating net worth, except to the extent such property is suitable and consistent with a reasonable mode of life, such as a vehicle and appliances.

Under the new rules, the VA now excludes from the countable assets of the claimant’s net worth calculation, the claimant’s primary residence including a residential lot of 2 acres. Marketable acreage in excess of 2 acres will be included in the asset calculation. However, the lot size may be larger than 2 acres if the excess acreage owned by the claimant is unmarketable. For example, if the property is only slightly larger than the 2-acre limit, or if the additional property is not easily accessible, or if there are zoning limitations, then the excess acreage may not be counted.

Additionally, the VA rules now impose a 36-month look-back period. This means any assets transferred within the 36-month time frame for less than fair market value, will be subject to a VA-imposed penalty period. Moreover, the purchase of annuities or transfers to trusts will be considered a transfer for less than fair market value unless the claimant retains control, then the annuity or trust will be included in the claimant’s net worth.

There are exceptions to the transfer penalty policy. One exception is that if the annuity is part of a retirement plan that required conversion of a deferred account to an immediate annuity. Then the amount transferred to the immediate annuity would not be penalized as a transfer, but the distributions from the annuity would be countable income.

Another exception to the transfer penalty rule is if a transfer was made to a trust that was created for the benefit of a veteran’s disabled child who was permanently disabled and incapable of self-support prior to the age of 18.

The VA believes the new rules will provide uniformity and consistency in decisions and ultimately result in efficiency in the claims process. It is worthy to note that this article only highlights a few of the major changes related to the new VA regulations. As always it is best to get sound legal advice tailored specifically to your situation from a competent elder law attorney before embarking on any plan seeking benefits.

This article was first published in the Houston Chronicle on October 19, 2018

Wesley E. Wright and Molly Dear Abshire are attorneys with the firm Wright Abshire, Attorneys, P.C., with offices in Bellaire, The Woodlands, and Carmine. Both Wright and Abshire are Board Certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and are certified as Elder Law Attorneys by the National Elder Law Foundation. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case, but should be considered general information.

 PLANNING AHEAD: Second marriages might complicate long term care

OCTOBER 23, 2018

JANET COLLITON

ARTICLES, ESTATE PLANNING, LONG TERM CARE, SENIOR CARE

When illness strikes, you do not usually think of legal relationships. But when a spouse needs serious care and is married to a second wife or husband, family relationships can bring with them unexpected problems and conflicts — both for the second spouse and for children by a prior marriage. This is what sometimes happens.

Suppose a spouse cares for her husband as long as she can at home. How long this continues varies widely and could go on indefinitely. Frequently spouses — even spouses who themselves have medical problems — take almost heroic measures to keep their husband or wife at home. Even then there can be a time when it is no longer possible. If it takes two people to lift someone from a bed, if a spouse wanders from the home and cannot find his or her way back, these are all disturbing issues that may mean that care at home is no longer possible.

Sometimes when a parent moves to assisted living in a dementia unit or to a nursing home, adult children cannot believe their parent cannot be sustained properly and safely at home.

At a monthly rate for nursing care in this area of about $12,000 to $14,000 per month, without planning and without using the Medical Assistance rules for spouses which are referred to as the “spousal impoverishment” rules, the spouse at home could take a very serious financial hit in a relatively short time. Without obtaining specialized legal help, she or he might never recover and could need help herself.

This can be when understanding is needed. An adult child might feel the move to personal care or nursing home is needlessly squandering money that would otherwise be an inheritance. Often with second marriages, each spouse leaves his or her estate primarily to children by a prior marriage. If those funds are spent to sustain the spouse at home, children need to understand there might not be an inheritance but their parent is being cared for in the best way possible under the circumstances. It is not an easy decision to make and it demands cooperation among everyone — the second spouse and the children by a prior marriage.

If you are dealing with a Medicaid certified nursing home, the Medicaid rules require certain assets to be moved out of the name of the spouse who needs care, or that person will not receive benefits. As to the house, although it does not have to be transferred to the spouse at home, if it is not and that person should die, the jointly-owned house would be inherited by the spouse in the nursing home and the government would claim under a program known as estate recovery against his estate for the amount the government paid.

There are other oddities. Prenuptial agreements are disregarded when it comes to Medicaid. Countable income except for personal income of the spouse at home and retirement funds such as IRA’s, 401(k)’s, are included in the Medicaid calculation for the spenddown. Without additional planning, a spouse can keep the house, a car, some other exempt assets and a certain amount in assets known as the “spousal share.” That amount could be increased with some planning. The income of the spouse in the nursing home will usually go to the nursing home.

Recognizing the complexity of planning, a spouse who is confronted with long term care for a husband or wife requiring care needs to develop a strategy before funds run low. To do this she really needs to consult with an elder law attorney who is very familiar with the Medicaid rules.

It is understandable that children by a prior marriage could misunderstand the complexities of planning. If good communication has been maintained over the years, children by prior marriages might ideally be included in the planning process so that they know what is happening and why.

Understanding the risks and benefits of remarriage, both emotional and financial, is important both to the couple and to their adult children.

This article was originally published at www.pottsmerc.com

Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-436-6674, colliton@collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, co-founder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.

PLANNING AHEAD: What certification means in Elder Law

• OCTOBER 25, 2018|
• Janet Colliton
• ARTICLES, ATTORNEY RESOURCES, THE CELA EXAM|

Recently, I had the opportunity to review my certification in Elder Law, a designation referred to as Certified Elder Law Attorney or CELA, and it occurred to me that many, probably most, people do not know what certification in elder law means, or how attorneys receive that designation.

There are only about 500 certified elder law attorneys in the United States according to the National Elder Law Foundation that bestows this description. One reason why, is that certification is not easy to get. My co-chair of the Elder Law Section of the Chester County Bar Association, Karyn Seace, Esq. in West Chester, is a certified Elder Law attorney as am I, and a few others in Chester County.

Most attorneys who indicate they are elder law attorneys do not have the CELA designation and, by the way, that does not mean they are not good or experienced in their practices in the elder law field, but only that they did not go through the rigors needed to qualify as a Certified Elder Law Attorney. I spent several years practicing in elder law myself before applying for certification.

So why obtain certification? Lawyers, unlike some other fields like medicine where a person could be considered “board certified” can, strictly speaking, practice in virtually any area, but are expected to read up in the field.

I could, for instance, but would not ever, handle a bankruptcy, since I do not know enough about bankruptcy. It is not my area. Instead I would refer such a case to one of many bankruptcy attorneys I know who are excellent in their field. I do, however, handle real estate for older clients since I have many years’ experience in real estate as well.

So what is certification in elder law? It is a designation issued by the National Elder Law Foundation (NELF) which foundation was established by the National Academy of Elder Law Attorneys (NAELA), the only nationally recognized group for elder law attorneys.

The CELA designation, issued by the National Elder Law Foundation, is recognized and approved by the American Bar Association, and also carries with it recognition as specialization in elder law by the Pennsylvania Supreme Court.

To become a Certified elder Law Attorney, an applicant must be licensed and continuously in good standing with the bars of every state in which they practice. The applicant must have practiced law for at least five years prior to application (most have much more) and still be practicing law. That is the easy part.

Next, the applicant must show substantial involvement in the field of elder law for the three years prior to application. This includes documenting at least 60 elder law matters or cases within the three years prior and those matters must fit certain specific categories. No identifying information of clients is given.

On renewal in five years, the attorney must again show another 60 elder law matters or cases within the three years prior.

Next, the applicant must have completed at least 45 hours of continuing legal education in elder law during the three years preceding the application.

Then, the applicant must submit names of five referring attorneys familiar with the applicant’s competence and qualifications in elder law. Three of the references must themselves have devoted a minimum number of hours to the practice of elder law.

Generally speaking, these three referral sources are also Certified Elder Law Attorneys. The referring attorneys must not be related to the applicant attorney and must not be engaged in legal practice with the applicant.

The applicant submits a short form application and a long form application. The long form application contains the information regarding the background on the 60 elder law matters handled.

Finally — and a stumbling block for most attorneys who attempt the designation — there is a 5½ hour examination in elder law, much of which is an essay which describes real life situations and asks the attorney how the matter should be handled.

The attorney applicant must sit for the exam within two years of filing the short form application and the pass rate for the exam is challenging. The exam and, specifically the essays, are judged by a panel consisting of Certified Elder Law Attorneys.

This article was originally posted at www.dailylocal.com

Janet Colliton, Esq. is a Certified Elder Law Attorney and limits her practice to elder law, retirement and estate planning, Medicaid, Medicare, life care and special needs at 790 East Market St., Suite 250, West Chester, Pa., 19382, 610-436-6674, colliton@collitonlaw.com. She is a member of the National Academy of Elder Law Attorneys and, with Jeffrey Jones, CSA, co-founder of Life Transition Services LLC, a service for families with long term care needs. Tune in on Wednesdays at 4 p.m. to radio WCHE 1520, “50+ Planning Ahead,” with Janet Colliton, Colliton Elder Law Associates, and Phil McFadden, Home Instead Senior Care.

Why you should use an Elder Law Attorney, Kathleen Whitehead, CELA 

When you look for an attorney to help you with a special needs or elder law issue, you should look first at Certified Elder Law Attorneys (CELA^®) near you. Why? Because they have demonstrated that they understand your legal problems, and they can help you.

The Certified Elder Law Attorney (CELA) certification has frequently been referred to as “the gold standard” for elder law and special needs practitioners. This reflects the hard work and proof required before an attorney can proudly proclaim that he or she holds the valued designation.

Preparation for a CELA designation includes several steps and several different types of qualification, all of which are designed to assure that clients receive good legal care. Before being certified, an applicant must:

1. Have practiced law for at least five years, and have focused at least half of their practice in the special needs/elder law field for at least the last three of those years.
3. Demonstrate “substantial involvement” in special needs and elder law practice, by demonstrating a minimum number of individual cases, spread across a number of different categories making up the “elder law” definition.
5. Study for, take and pass a rigorous, day-long written examination. Recent pass rates have been below 50% — and that is of applicants who have already met the experience requirements.
7. Undergo a review by peers and colleagues, focused on the applicant’s reputation for ethical and competent representation in elder law and special needs planning matters.

There are over 500 CELAs in the country, so not every community has even one person who has been certified. Your lawyer should be a CELA — it is your surest method of independently confirming that she (or he) is more than just qualified. After all, you deserve the best legal representation available.

A Family Meeting as Part of Effective Estate Planning

Tammy Weber, CELA^®

Posted March 21, 2019 on https://www.paelderlaw.com/a-family-meeting-as-part-of-effective-estate-planning/

Effective estate planning takes time and evolves over the various seasons of life.  Often, a family meeting is one of the final steps in the estate planning process.  There seems to be a trend among baby boomers to want to make sure there is transparency and understanding regarding their decisions so that when they pass away, their wishes are known and family conflict is minimized, if not avoided altogether.  A family meeting is very helpful when there is an uneven distribution of assets (actual or perceived), a blended family, a beneficiary with substance abuse or gambling issues, or when there have been gifts that have been made during lifetime.

Why a family meeting?

The purpose of a family meeting is to share relevant information with family members.  This will prevent surprises when you become incapacitated or pass away and obviate disagreements and discord.  Your professional advisors are often present so that your family can become comfortable working with them.  You can explain to everyone at the same time what guided your choices.

Who participates in a family meeting?

Who you invite depends upon your personal circumstances. Each family is different.  Often it is your adult children, siblings and on occasion, your close friends if you have no family. Leaving specific people, such as one particular child, out of the meeting can create even more issues than the family meeting is supposed to prevent. (If you’re not ready to invite everyone, it might not be time for the meeting!)  Things get trickier when you involve the spouses or significant others of the adult children.  Sometimes it is good to control the message and have the “in-laws” hear everything at the same time as the children.  This avoids potential misperception and the “whisper down the lane” effect if the child goes home and tells his/her spouse.

Invite the entire professional team — the attorney, financial advisor and accountant.  The professionals are able to explain legal or tax concepts and consequences easily and may also serve as a stabilizing influence if any members of the family are upset. It is often easier to have the meeting at the professional’s office; a more neutral territory.

What will be discussed?

Think it through and create an agenda.  Outline what you are going to discuss.  Don’t include an item on the agenda if you are not ready or willing to discuss it.  For example, if you know that several of your children want the vintage Corvette and you have not decided what to do with it, do not put the Corvette on the agenda.  You may, or may not, want to provide a detailed financial statement.  Stick to the agenda and set some ground rules.  You may choose to send out the agenda prior to the meeting, allowing everyone to prepare questions.

Topics that may be covered.

You may share who you have chosen (and why) as your agent under your Financial and Health Care Powers of Attorney.  The attorney could explain how the documents work and when they are used.  You may discuss your philosophy regarding end of life decisions, organ donation and your health care and/or facility preferences.

Your will, beneficiary designations, views on charitable giving, and the potential tax consequences for your beneficiaries are other topics for consideration.  If the executor that you have chosen does not want to serve, it is better to know that now.

If you have established a trust, a review of the trustee and beneficiary provisions is helpful.  Also, what is owned by the trust?  Too often we see trusts that have not been funded.

Where are your accounts located?  How are they titled?  Are there online user names and passwords?  A good first step is to have a spreadsheet with the name of each account, account holder(s), location of account, and the account number.  Is there a safe deposit box?   Where is the key?  What is in the safe deposit box?

Care needs.

As your health changes, caregivers or care managers may be needed.  Share your latest doctor’s report.  There are apps available to track and share health care and notes by children, such as CaringBridge.

If one of your children is providing care to you and you are paying that child, this is a good time to explain to your other children why you are doing so.  Or, you may be giving more to the child caregiver in your will, because they provided care to you during your lifetime.  Your out-of-state child may not understand this.

Cremation or funeral arrangements.

If you have prepaid burial or cremation arrangements made, share those with your family.  If you do not, discuss what your wishes are.

Effective estate planning is different for everyone, but it should be done to have your goals achieved.  As Benjamin Franklin said, “If you fail to plan, you plan to fail.”

Tammy A. Weber is a Certified Elder Law Attorney and the Managing Attorney of the law firm of Marshall, Parker & Weber, LLC with offices in Williamsport, Wilkes-Barre, Jersey Shore and Scranton. For more information visit www.paelderlaw.com or call 1-800-401-4552.

How To Plan The Legal And Financial Needs Of A Loved One With Dementia

Christopher Berry, CELA®

Forbes Council Post

If you have a loved one who has been diagnosed with Alzheimer’s or dementia, there are certain things that your family needs to plan for both legally as well as financially. Alzheimer’s disease is the sixth leading cause of death in the United States as of 2018, and currently, there is no cure.

If you care for a loved one who has Alzheimer’s or dementia, you know that it can be trying, difficult and expensive. For example, currently, the average cost of a private room in a nursing home is estimated at over $7,500 per month. The question becomes: how do we pay for long-term care if we have a loved one diagnosed with Alzheimer’s or dementia?

If you have a loved one who has recently been diagnosed with Alzheimer’s or dementia, there are three main disability documents that should be in place. First, a financial power of attorney is necessary. This is a document that appoints someone to make financial decisions if the individual is unable to make their own decisions. Next would be the medical power of attorney document that appoints someone to make medical decisions for the incapacitated individual. Last is a document that instructs the financial and medical power of attorney on how best to care for the person who needs care. This document is a personal care plan. With these three documents in place, there is now a foundation to make decisions for the person diagnosed with Alzheimer’s or dementia.

With that foundation in place, the next step is to identify how to pay for the devastating cost of long-term care. There are six main ways to pay for long-term care, so it is up the family to best determine how to use the following options.

1. A family can privately pay for long-term care. In other words, they can use their retirement accounts or savings, sell real estate, etc., to fund care. This is where most families start, but they certainly don’t want to depend on it.

2. Families rely on their children to pay for long-term care. Often, the kids do not financially pay for long-term care, but they often pay for long-term care by using their time. Everything in life is time or money, and the children typically either take time to visit the certified elder law attorney to help create a plan of care or put their life on hold to become a full-time caregiver.

3. Make use of long-term care insurance. There are now new forms of long-term care insurance that do not have the escalating premiums of pure long-term care policies and also provide a death benefit should the individual never need long-term care. The key to long-term care insurance is that it needs to be set up ahead of the Alzheimer’s or dementia diagnoses.

4. Another way to pay for long-term care is through Medicare — but to be honest, Medicare does not actually pay for long-term care. What Medicare pays for is short-term rehab when there is some type of event, such as a broken hip. Medicare also pays for hospice, also known as end-of-life care, which is important for families that have loved ones diagnosed with Alzheimer’s or dementia. For more information on what Medicare will and won’t pay for visit Medicare.gov.

5. Families of veterans can make use of the veterans benefit, more specifically the non-service-connected pension, which is sometimes called the aid and attendance benefit. This VA benefit can provide an additional $1,000-$2,000 per month to help pay for long-term care for veterans and surviving spouses of veterans.

6. Finally, Medicaid may help pay for the cost of a nursing home. However, there are certain requirements to qualify for Medicaid, including an asset test that varies by state, as well as a look-back period to see if a family has moved any money around. One of the strategies to help pay for long-term care and use Medicaid would be utilizing an asset protection trust, such as a Castle Trust, as a way to shelter assets and protect against the Medicaid or nursing home spend-down.

If you have a loved one who has been diagnosed with Alzheimer’s or dementia, it is important to set up disability documents to be able to make medical and financial decisions. Once the foundation of decision making is handled, the next step is to consider the type of care that will be necessary, including how best to pay for that care.

This article was first published on Forbes on February 25, 2019: https://www.forbes.com/sites/forbesfinancecouncil/2019/02/25/how-to-plan-the-legal-and-financial-needs-of-a-loved-one-with-dementia/#254697815090

Elder Law Guys: A way to help ease the financial pain of caregiving

JULIAN GRAY AND FRANK PETRICH|

Here you are, a hard-working career person with kids and parents. Suddenly one or both of your parents become ill or injured. Now, you may find you are being put in the role of your parents’ caregiver.

For our purposes, we’ll define a caregiver as someone who, generally, is unpaid for their services in assisting another with either or both of that person’s activities of daily living (personal care activities fundamental to being able to care for oneself such as bathing, dressing, toileting and eating) and instrumental activities of daily living (related to activities such as cooking, shopping, doing housework, driving, managing personal finances, etc.)

According to the National Alliance for Caregiving and AARP, in 2015, there were almost 43.5 million caregivers or 13.5 percent of the U.S. population providing care for an adult or child over the previous 12 months.

Obviously, the role can create many physical demands, but also financial burdens by potentially disrupting the caregiver’s ability to earn a continuous and sustainable income.

One way to help ease the financial burden is by compensating the caregiver, using a method called a caregiver agreement.

With the cost of personal care/assisted living running from $50,000 to as much as $80,000 a year and skilled nursing care averaging over $113,000 a year in Pennsylvania, a caregiver agreement becomes a legal way for the older person to “spend down” their resources in exchange for the personal care services which might allow them to “age at home.”

If the loved one simply made gifts of their resources to the caregiver and then became a resident of a skilled nursing facility, they could then be subject to a five-year “lookback” period as to those gifts which could create periods of ineligibility for Medical Assistance.

What are some of the critical items to have in a written (and, it must be in writing) care agreement?

State, in clear detail, the type and nature of the services to be provided by the caregiver.

For example, are meals being provided? Who is paying for the food? Is rent to the loved one being charged if living in the caregiver’s home? What about gas, electric, water and sewage? How much housekeeping, laundry and driving services are to be provided?

Spell out all types of additional services such as bill paying, home maintenance and repair items, shopping etc.

Look for a reasonable hourly rate for each of the specific services you’re providing such as what a home care agency might charge.

Keep a log of the time and services provided. Remember also that the money received is taxable income and needs to be reported.

Record keeping is critical.

Both the older person and the caregiver can benefit from such an arrangement.

The older person may, because of your services, be able to stay in your or their own residence, and, possibly never have to enter a long-term care facility. The caregiver can receive compensation for the services provided which could be vital if they must give up the opportunity to earn a living.

Even the state could benefit. The period for which the state, under the Medical Assistance program, might have to pay for skilled nursing care could be substantially decreased or even eliminated by having the older person being provided care under a care agreement in a home environment.

Given the increasing number of seniors in our society and the desire of most to age in place, coupled with the increased pressure on family caregivers, it’s important for the caregiver and other family members to come to a consensus on the utility of using a care agreement.

Remember, that the state County Assistance Offices may test the validity of the agreement.

While both you and your parents may feel that you are entitled to an inheritance from them and feel a little uneasy about adopting a business-like approach to your caregiving, such an agreement will help withstand such scrutiny.

Also, don’t do such an agreement yourself. It’s too important not to do it correctly by obtaining competent elder law advice both for the agreement and related tax and estate planning matters.

Julian Gray and Frank Petrich are certified elder law attorneys who practice in the Pittsburgh area at Gray Elder Law. Send questions to elderlawguys@grayelderlaw.com or visit www.grayelderlaw.com.  This article was originally published on August 27, 2018 at www.post-gazette.com

Golden Rules for the Golden Years

BY VICTORIA HOUGHTON, ASSISTANT MANAGING EDITOR – DERMATOLOGY WORLD

According to the U.S. Census, there were 47.8 million people over the age of 65 in the United States in 2015, and it’s expected that this figure will grow to 98.2 million by 2060. Many dermatologists are familiar with this Baby Boomer generation, as the 2017 Burden of Skin Disease Report indicates that 50% of Americans over the age of 65 have skin disease with an average of 2.2 skin diseases per person (J Am Acad Dermatol. 2017; May 76(5):958-72).

However, while dermatologists are uniquely qualified and well-versed in treating skin conditions and diseases among this particular patient population, Justin Endo, MD, MHPE, assistant professor at the University of Wisconsin’s dermatology department, contends that caring for elderly patients spans beyond dermatologists’ robust clinical acumen. “As dermatologists we play a big role
in terms of improving the quality of life for this entire patient population and recognizing issues that other physicians might not think of.”

Dermatology World talks with experts about the following issues that dermatologists may encounter when caring for elderly patients:

• Treatment Adherence
• Elder abuse and neglect
• Legal and ethical considerations

Treatment adherence

According to some estimates, up to 50% of patients with chronic conditions do not take their prescribed medications (Dtsch Med Wochenschr. 2011 Aug;136(31- 32):1616-21). Moreover, “Across the United States, up to 21% of adverse drug events in ambulatory care was associated with nonadherence. It is estimated that $1 billion per year is wasted when patients are not taking their medications the right way,” said Dr. Endo. “That’s not specific to older adults or dermatology, but treatment non-adherence is a huge problem.” Although medication adherence is a challenge for patients of all ages, there are a number of factors that physicians may want to consider if treatment adherence is a challenge with their older patients.

Communication

For Dr. Endo, communication with patients plays
a major role in treatment adherence. “When we’re talking to older patients, we might not be using the best practices for communication.” Potential hearing loss and/or vision deterioration can interfere with communications about medicines. “Speaking in a lower tone can help patients with a hearing impairment,” Dr. Endo said. “Also, using a minimum of a 12-point font and 1.5 line spacing as well as high contrasts like black print on white paper [for printouts] can really improve people’s ability to understand,” Dr. Endo said.

Anne Lynn Chang, MD, associate professor of dermatology at Stanford University School of Medicine, tries to make her medication instructions as clear as possible, both for the older patients and their caregivers. “I will use a body map diagram and write in large font what medicine is applied where on the body. Same with prescription labels, I write down where on the body to apply a topical medication. I’m not just saying ‘Apply to the affected area,’ but ‘apply to arms’ or ‘apply to scalp.’” If adherence is a problem, Dr. Chang will also give patients a large-font printed diary with instructions to record their dates of use. “I ask them to bring their medication tubes and their diary to their next appointment so I can get an idea of how much of the medication they’re using and the frequency. Often drugs are ‘not working,’ according to the patient, but the lack of therapeutic effect is because they are not using their medication regularly and at appropriate amounts.”

Care coordination

In addition to patient communication, Dr. Endo contends that communication with other physicians is a critical component for ensuring treatment adherence, particularly with older patients who may be seeing multiple specialists in a number of care settings. “The more doctors or nurses that you have involved in transitions of care, the more opportunities there might be for medication reconciliation error. We need to make sure that we’re communicating to other providers — not just the patient and their families.”

This pearl applies to pharmacists as well where automatic refills are concerned. “While automatic refill reminders can be good for patients, we actually found at our institution that sometimes it can cause confusion. When a medicine is supposed to be stopped or adjusted, the pharmacy still has it in their system that there are more refills of the old prescription.” Dr. Endo says there are e orts afoot to improve communications with pharmacists so that when a physician discontinues a medication in their electronic medical records, it sends a ‘stop medication’ notification to the pharmacy. Until that happens, he said, physicians and pharmacists should be communicating about medication changes to avoid any confusion.

Comorbidities

In addition to potential hearing loss or vision deterioration, other comorbidities can impede treatment adherence in older patients. “If you have really bad arthritis it might be hard for you to open up a really tiny tube with a little twist top,” Dr. Endo said. “Sometimes it takes some creativity and working with the pharmacist, or asking the patient to work with the pharmacist, to see if they can get their medications in easier-to-open containers.”

Similarly, patients with mobility issues may struggle with topical medications. Dr. Endo encourages physicians to get creative. “There are back-lotion applicators that you can find online that are helpful for all patients. Using assistive devices can make a huge difference.”

Polypharmacy

In addition to communication discrepancies and challenging comorbidities, another reason that older patients may not be adhering to their treatment plan is that they may be taking several medicines. “In general, older adults take more medicines compared to younger adults and children,” said Dr. Endo. According to Dr. Endo, taking multiple medications, also known as polypharmacy, can increase a patient’s likelihood of treatment non-adherence. “They have to keep track of more medications. It creates more opportunities for human error as regimens get more complicated.” Additionally, says Dr. Endo, older patients may see more specialists in various locations, and as such may have multiple care transitions. “There are all of these additional potential opportunities for medication confusion to occur.”

Recognizing these challenges, Dr. Chang will try not to give her patients too many medications if she can. “It’s easy to feel like we are addressing the patient’s problem when we give out more types of medications, but people get confused or simply don’t have the time to adhere to multiple topical medications. Multiple medications can also get expensive.” Additionally, Dr. Chang will follow up with the patient shortly after the initial appointment to check in on adherence. “Instead of seeing them in six months I’ll see them in maybe a month after the first visit. I need to see them to and out if the drug is working for them. That gives them a concrete endpoint and will hopefully motivate them to give a treatment a decent trial for efficacy. If they know it is efficacious, they may be more likely to stick to a treatment regimen long term,” said Dr. Chang.

Finances

The cost of drugs remains a critical hurdle for some patients with regard to adherence, says Dr. Endo. “The vast majority of people who are older are living on fixed incomes. Many of them are relying on government insurance.” However, the cost of health care in

general may be keeping patients from not only taking medications, but following up with their physician. “The copays for people to visit their doctors can be really expensive, especially for the younger older people who may still be working and don’t have government assistance,” Dr. Endo said.

Dr. Chang agrees. “The cost of medications is definitely a concern. When patients mention that, I try to give them different options. There are some online pharmacies that people can ask a caregiver or family member to help them navigate online. Or they can call around different pharmacies before going to a particular pharmacy. They may find that prices can vary a lot. Then of course, I try to use generics but some generics can be pricey too now,” Dr. Chang said.

While prescription adherence is a key factor
in caring for elderly patients, Dr. Chang adds that physicians should also be encouraging their patients to adhere to basic self-care practices. Dr. Chang will ask her

patients to make their skin care regimen an extension of their other hygiene-related routines. “If they brush their teeth, they should put on their sunblock or moisturizer right afterwards. I also go over non-medical issues like keeping your shower short or not using very hot water while bathing,” Dr. Chang said. “Some of the treatment adherence isn’t just medicine, but also healthy skin habits such as dry skin care.”

Elder abuse and neglect

According to the National Council on Aging, one in 10 Americans older than 60 have experienced some form of elder abuse. Additionally, about five million elders are abused each year. For Dr. Chang, there is a unique role dermatologists can play in identifying elder abuse as many indications of mistreatment are cutaneous. “We look on the skin and do comprehensive skin checks so we often see things that other doctors don’t,” Dr. Chang said.

Monitoring

Elder abuse — from physical and sexual abuse to neglect — can manifest on the skin through bruising, lacerations, burns, genital trauma, and malnutrition. When it comes to bruising and lacerations, Dr. Chang says that asymmetry may be a sign of abuse, as well as if the injury resembles an object such as a belt buckle. Similarly, burns that resemble an object, such as a cigarette, or have a stocking- or glove-type pattern indicating immersion could be red flags (J Am Acad Dermatol. 2015: Aug;73(2):285-93). “Certainly, the things that are typical to a rape victim with the area

of penetration are quite similar here, such as skin breakdown and ulcers that are infected or getting worse,” said Julie Schoen, JD, deputy director of the National Center on Elder Abuse. Additionally, poor hygiene and photo-sensitive dermatitis, for example, could be suggestive of pellagra from a vitamin B3 deficiency (J Am Acad Dermatol. 2015: Aug;73(2):285- 93).

If the physician notices any of these issues, Schoen recommends talking with the patient. “Often the caregiver will come in with the patient, but you’ll want that time alone with the patient to talk with them. Ask them — just like you would with any other patient — how is everything going?” While the patient is talking, keep an eye out for signs of fear and anxiety, or if they seem nervous in the presence of the caregiver, says Schoen. “The key is: What’s unusual? We all hit our shins on the coffee table but if you see something in the middle of the back or hidden from sight that can be a red ag.”

Documenting

If something looks unusual, Dr. Chang recommends documenting those suspicions carefully. “I would get their permission to document with photographs. If you see them once, it may be a one-time event where they fell by accident. However, if it’s a pattern and serious, then that may be something that you want to investigate further and potentially report if the story behind the injuries does not make sense.”

In addition to photos, Schoen says the more details a physician can add about their encounter with the patient, the better. For example, “‘Patient was able to tell me what day it was and knew who I was and seemed alert and oriented.’” However, physicians should be careful about what they include in the records about the patient that can be used against the patient if a case were to go to prosecution, she warns. “Physicians should be cautious about how they write about the patient in their charts. Making judgment calls or loose statements about capacity, you have to be careful with that.”

Reporting

According to Todd Whatley, JD, president of the National Elder Law Foundation, physicians are required to report suspicion of elder abuse in almost every state. However, “statistically most physicians don’t because they are concerned about violations of physician-patient confidentiality and HIPAA-related issues.” Physicians can find out what’s required of them and

how to report suspected elder abuse through their state’s adult protective services department. Additionally, if the physician suspects that the patient is receiving sub-optimal care

at a nursing home, Whatley recommends speaking with the patient’s family and/or going to adult protective services. “I would start with the health care power of attorney and family member that is most involved and let them know that there’s a problem. Most family members can then go back to the nursing home and address that. If the situation is really bad, that’s abuse and the physician should be reporting to adult protective services.”

Overall, when it comes to elder abuse, Schoen encourages physicians to be proactive. “Just know that there are resources available and there are solutions. People think that there’s not much they can do about it, but there is a lot they can do.”

Legal and ethical considerations

In addition to spotting abuse and neglect among elderly patients, physicians should also be aware of potential mental capacity issues, says Whatley. “All of us have the responsibility to meet with the client or patient and talk to them and essentially determine if they are making good decisions.” How do you do that? “I think we can all tell if a person is ‘making sense,’” says Whatley. “Are they making reasonable decisions that a person looking out after their own self-interests would? You can tell if a person is simply not making well-reasoned, self-interest-protecting decisions. I think physicians are well trained in that

and can see that fairly quickly.” Indeed, before a procedure, Dr. Chang will talk to the patient to make sure they understand the risks and benefits. “We try to document their assent and that to the best of the patient’s ability they understand the reason for what we’re doing, what the risks are, and what the possible benefits are.”

Medical authority

If the physician suspects that the patient no longer has the capabilities to make decisions about their health care, Whatley says the physician can then seek out others to help the patient make those decisions. “That’s where we hope that the patient has designated a health care power of attorney. This is a written document that is either witnessed and/ or notarized that designates someone to make health care decisions when that person cannot, or to assist the patient in making those decisions.” According to Whatley, the form is often submitted to the patient’s primary care physician or hospital, so a specialist like a dermatologist will need to connect with them. “Typically, with health care powers of attorney, there is no triggering event. It is effective immediately and it is up to the physician to say, ‘I’m seeking someone else’s advice here because my client is not making good decisions.’”

If there is no health care power of attorney, Whatley says that the physician — usually the primary care — can work with the next of kin to determine next steps. “Typically, what most physicians will do is tell the family that they need to get a guardianship. I am very adamant that we should not do guardianships unless it’s absolutely the last resort because that

is taking away the rights of the older person and allowing a judge to appoint someone.”

Care goals

However, many patients will be of sound mind, says Dr. Endo, and it’s important for physicians not to assume otherwise and base care decisions simply on age. “Avoid ageism. The aging process is so variable. When we’re kids, we go through developmental landmarks at roughly the same
age. As we get older, we have different life experiences and health situations which is why geriatric care is not one-size- fits-all.”

Indeed, with this particular patient population, care priorities and goals will vary and may differ between what the patient wants and what the physician recommends. As a result, Dr. Chang suggests taking the time to come to an understanding about the patient’s care goals. “I try to assess what their most important priority is. I don’t want to just roll them into a blanket treatment plan, because I believe that every patient is different. Many older patients are very high-functioning and doctors shouldn’t assume that age alone precludes them from particular treatments, especially if they have few other medical problems. Taking the time

to understand your patient’s goals might seem like it takes a lot of time, but in the long term it’s worth it as it helps you to guide the patient toward the best choices for the particular patient.”

Dr. Endo finds that often his patients will be candid about their care goals. “Some patients will say, ‘I just want to be around for my grandkids’ birthdays.’ Other people might be more concerned with quality of life. It goes back to patient-centered care and recognizing that there’s a lot of variability among older adults in terms of what they value, depending upon their psycho-social circumstances, their health, etc., and not just based upon their chronological age. What’s challenging but also rewarding about taking care of older adults is once we appreciate the big picture, we can optimize our treatment plans and not just focus on the skin.”

When it comes to treating elderly patients, Dr. Chang encourages all physicians to simply put themselves in the shoes of their patients. “The way I think about it is: How would all of us want to be treated when we’re not fully able to take care of ourselves? Hopefully, one day we’ll all be old enough to be in that situation. We should be doing what we can to help these patients age gracefully.” dw

This article was originally published by the American Academy of Dermatology, July 2018.  https://www.aad.org/dw

What Makes Elder Law Attorneys Different from Other Attorneys?

BY GREGORY S. FRENCH

Elder law attorneys are very different from other attorneys. They define their practice not by the type of legal problems they handle but by the type of persons they help.

Elder law attorneys are very different from other attorneys. They define their practice not by the type of legal problems they handle but by the type of persons they help. Like Aging Life Care Professionals, they help families to maximize the independence and quality of life of older persons. Elder law attorneys can help families accomplish this while best utilizing and protecting life savings. They make sure that older persons receive whatever help or care they may need in ways that best utilize family and government resources.

Working with an Elder Law attorney offers the family and the older person several advantages. First, the Elder Law attorney is experienced with communicating with and working with older persons and their families on interrelated legal and non-legal issues. Second, the Elder Law attorney has working knowledge of the professional and community resources publicly and privately available to meet the needs of older persons. Third, the Elder Law attorney has the expertise to prevent and solve problems in the following areas:

• Paying for Health and Long-term Care: Planning for and assisting with obtaining Medicaid, Medicare, and veterans benefits for persons at home or in an assisted living or nursing
• Insurance: Counseling and representation concerning health, medigap, long-term care, prescription, disability, and life
• Planning for Disability: Advice and drafting of financial and health care powers of attorney and living
• Fiduciary Representation: Seeking the appointment of and advising guardians, conservators, trustees, executors, representative payees, and those acting under powers of
• Legal Capacity Counseling: Advising how capacity is evaluated and the level of capacity required for decision-making and representing those who are the subject of guardianship or other protective
• Elder Abuse: Preventing and remedying abuse, neglect, and financial
• Retirement Planning: Maximizing Social Security, pension, IRA, 401(k), 403(b), and retiree health
• Housing: Counseling concerning continuing care retirement communities, assisted living facilities, home equity conversion, and living with family members or
• Residents Rights Advocacy: Counseling and representation concerning admission contracts, quality of care, and transfer and discharge
• Estate Planning: Wills and trusts and minimizing estate and income taxes on IRAs, 401(k)s, and 403(b)s.

Lots of attorneys say they practice elder law. Here’s how to find the “right” elder law attorney:

1. Is the attorney certified? A growing number of states permit attorneys to become certified. If your state does, ask whether the attorney is certified in elder law. Certification means that the attorney has the elder law experience and has met the continuing legal education requirements to hold him or herself out as an elder law specialist.
2. Is the attorney a member of NAELA (National Academy of Elder Law Attorneys)? NAELA membership shows that the attorney has an interest in elder law, access to NAELA’s educational resources, and has committed to support NAELA’s Aspirational Standards for the Practice of Elder Law. Has the attorney been admitted to NAELA’s Council of Advanced Practitioners or selected as a NAELA Fellow?
3. How much of the attorney’s practice consists of assisting persons with issues having to do with aging? Lots of attorneys list elder law as part of their practice. More than half the time of the “right” elder law attorney is spent assisting persons with issues having to do with
4. In what elder law continuing legal education has the attorney participated? Ask the attorney for the transcript of his or her continuing legal education in the past 2
5. Is the attorney a leader among elder law attorneys? For example, has the attorney chaired a local or state bar elder law committee? Or served as an officer of a NAELA state chapter? Or served on the board or as an officer of NAELA?

Elder Law Attorneys and Aging Life Care Professionals often collaborate to maximize the independence of quality of life of older persons. Together, they help older persons to receive and pay for their health and long-term care, obtain necessary legal documents, protect those in danger of neglect or exploitation, maximize government benefits, and locate appropriate housing and care. Elder law attorneys who work with aging life care professionals can much more holistically meet these and other needs of older persons.

By Gregory S. French, Certified Elder Law Attorney, Cincinnati, OH

This article was originally published in the Aging Life Care Association (ALCA) Newsletter

Estate Planning with IRA Trusts

BY ROBERT FLEMING | TUCSON ELDER LAW

Many folk have large retirement accounts.  According to the Investment Company Institute 2016 Yearbook, in 2015, members of 60% of US households had invested $24 trillion in retirement market assets, including IRA’s, 401k’s, 403b’s, Simple IRAs, and others.  This article discusses IRAs, and someone with any others should consult with knowledgeable legal and financial advisors.  In fact, every single general rule stated in this article is subject to exceptions, and there may also be specific situations where these rules should be purposefully ignored.  This article should be considered simply a guide for asking questions of your advisor, rather than a roadmap for do-it-yourself action.

The typical estate plan for a married couple with IRAs is naming the surviving spouse as the first (or primary) successor owner.  There are special tax benefits for a surviving spouse that do not apply to any other possible successor owners.  There are other options, but these should not be pursued without specialized advice.

Classically, they name their children as the contingent or remainder successor owners who will receive the accounts upon the second of their parents’ deaths.  Single IRA owners may name their children as primary successor owners, and those without children typically name other family members to receive these accounts.  Again, there are other options (including some charitable ones) that should be considered after appropriate advice.

Most IRA owners want to keep IRA assets invested as long as possible.  Since growth is not taxed until the funds are withdrawn, they will grow faster. Thus, the longer they are invested, the greater they will be. This is called “stretching” the IRA.

One of the benefits to naming a surviving spouse as the first successor owner is that the spouse is permitted to “roll” the IRA into his or her own name as one of the available options.   No one else has this option, and everyone else must begin withdrawing funds (and paying taxes) as soon as the IRA becomes theirs, called the minimum required distribution (MRD).  For younger successors, the MRD is not great, an eight year old successor owner will need to withdraw a little over 1% (roughly one-seventy-fifth) as his or her MRD.  In contrast, a sixty-five year old successor would have an MRD of almost 5%, and the MRD for a seventy-one year old spouse would be just over 6%.

Thus, it makes sense to name as young a beneficiary as possible so as to lengthen the process to maximize the effect of compounded tax-deferred growth. For example, if a seventy year old widow leaves an IRA with $100,000 to an eight year old great-grandchild (assuming there are no generation-skipping tax considerations), and the IRA grows at 3%, then at age 65, the great-grandchild will have withdrawn over $207,000 from the account and it will still be worth over $130,000–quite a positive result for a $100,000 IRA.  (At a higher rate of growth, like 6%, that same $100,000 IRA would be worth $700,000 at age 65, and MRD withdrawals would be as high as $40,000/year).

Most IRAs don’t last this long, and it would not surprise anyone that when our eight year old turns eighteen, he or she will find a reason to withdraw much of this inherited wealth.  One way to be certain that MRD withdrawals are made and to limit extra withdrawals to actual needs, is naming a trust successor owner.  IRS regulations do not allow many traditional trusts to stretch. However, if the trustee is required to withdraw and pay out at least the MRD each year, the IRS will allow the trustee to use the great grandchild’s life expectancy.    This is called a “conduit” trust.  Another IRA trust is called an “accumulation” trust, but this are fairly complicated to set up.  Describing any IRA trust as “simple” might be stating an oxymoron, but compared to an accumulation trust, a conduit trust is straightforward for knowledgeable counsel.

The trustee of a conduit trust may make larger withdrawals if necessary (like helping with medical expenses or college) but the beneficiary will need to convince the trustee that other withdrawals are truly necessary.  The trustee might say “I agree you need a new car, but look for a good used Chevrolet rather than the new Tesla you want”.  Several institutions offer “Trusteed IRA”  plans for a fee, and this has the added benefit of having professionals invest the IRA funds (which may result closer to 6% than 3% growth, as in the example above); it also provides continuity in trust management.  Other investors opt for family members as trustees, which may save money in fees but might impose a burden on family members.

With good planning, it is possible to provide a great gift to descendants; a trust makes it more likely they will receive it.

By Robert Fleming.  This article was originally posted on July 17, 2016 at https://elder-law.com/estate-planning-with-individual-retirement-account-trusts/