Category: nursing home care

Who Pays the Nursing Home While Waiting for Medicaid Approval?

Can a person apply for Medicaid before assets are spent down to below $2,000?

Once assets are down to $2,000, who is responsible for paying the nursing home costs while waiting for Medicaid approval — the wife, the children – and how much must be paid to the nursing home?

Medicaid attorney in jacksonville florida for medicaid benefits to pay for nursing home costsIn Florida, an individual can apply for Medicaid benefits to pay nursing home costs before they are actually eligible.  The approval will take effect upon the date the application is approved. While the nursing home resident’s application for Medicaid benefits is pending, the nursing home resident is considered “Medicaid pending.”  When someone has the status “Medicaid pending,” generally the resident will pay all of the resident’s income to the nursing home facility.  If the nursing home resident’s income is greater than what is allowed to qualify for Medicaid benefits, then a qualified income trust wil become necessary.

In some cases, a healthy spouse of the nursing home resident is entitled to a share of the nursing home resident’s income. In other cases, the spouse of the nursing home resident is entitled to a share of the nursing home resident’s assets. In those cases, the nursing home resident can transfer savings to the spouse rather than spending down assets to less than $2,000. As elder law attorneys, we can help you determine how these different scenarios will work in your situation.

For more on Medicaid’s protections for the healthy spouse so that the healthy spouse is not rendered indigent and can remain in the home after the nursing home resident is living in the nursing home (the “community spouse”), click here.

For more on shifting income to the healthy spouse from the spouse in the nursing home, without interfering with receiving the Medicaid benefits to pay the nursing home, click here.

For more on transferring assets to the healthy spouse to bring the nursing home resident’s assets below $2,000, click here.

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Better to Play it Safe: Proactive Estate Planning and Cognitive Impairment

Elder law attorneys can help plan your estate to include cognitive impairment or Alzheimer's diseaseMost financially savvy individuals begin planning their estate when they’re in peak mental shape. The idea that this might change at some point in the distant future is an unpleasant one, and they would rather go about their estate planning as if they’ll be as sharp as a tack late into their golden years. Unfortunately, this common approach of ignoring a potential problem and hoping it simply won’t happen can leave a giant hole in your estate plan. Read on to find out that this common hole can be more easily filled than you might think.

Expect the best, but plan for the worst

The reality is that an individual’s chances of experiencing some form of cognitive impairment rise with age. While it’s never certain whether cognitive impairment will occur, smart estate planning means factoring it in as a very real possibility.

As the huge baby boomer generation transitions from the workforce and begins to make their way into retirement, cases of Alzheimer’s are expected to spike from the current 5.1 million to 13.2 million as soon as 2050. Alzheimer’s is just one of several cognitive impairment conditions along with dementia and the much more common mild cognitive impairment, or MCI, which is often a precursor to those more serious ailments.

As U.S. life expectancies increase, the chances of living with cognitive impairment increase as well — with at least 9.5 percent of Americans over 70 experiencing it in one form or another.

No matter your age or family history, cognitive impairment can affect anyone although it’s widely accepted to affect mostly older adults. As you implement or revise your estate plan, it is well worth the effort to plan for this potential. Luckily, estate planning attorneys have developed good solutions to handle this circumstance and can help guide you on the best way to protect yourself and your family.

An easily-avoidable estate planning mistake

Consider Ashley’s story. A successful real estate agent with a stellar career in her hometown of Kalamazoo, MI, Ashley begins planning her estate in her mid-thirties.

She partners with an estate planning attorney, and together they draft a revocable living trust with Ashley’s preferred beneficiaries and charities in mind, figure out guardianship for her two sons in case she and her husband pass suddenly, and settle on an appropriate beneficiary for her life insurance policy. Now that she knows where her assets will go after her death, Ashley rests easy assuming there’s nothing more that needs doing in her estate plan.

Save your family from obstacles and conundrums

But forty years down the road, Ashley’s children realize her MCI is developing into Alzheimer’s. Although she’s occasionally visited with her attorney to make adjustments to her plan,  she never added any provisions for how she wanted her children and other guardians to handle a situation like this. Here’s where things get complicated.

Ashley did not work with her estate planning attorney to put disability provisions into her trust and never worked with an insurance professional to purchase adequate income insurance or long-term care insurance. The care she requires to live her best life possible with cognitive impairment doesn’t come cheap. Those mounting care costs will likely quickly erode Ashley’s estate. As a result, her estate plan may no longer work as intended, since it no longer lines up with her actual asset portfolio.

But since Ashley does not have the ability to rework her estate plan in her current mental state, her family is left with the burden of figuring out what to do while navigating a complex and bureaucratic legal system in the guardianship or conservatorship court. No one in the family really knows what Ashley’s wishes are regarding both serious medical decisions and financial changes. All Ashley’s family wants is to see her enjoying her remaining years in peace and security, but they are now tasked with using guesswork to make difficult choices on her behalf while a guardianship or conservatorship court watches every move.

There are several alternatives to a court-supervised guardianship or conservatorship, but they involve advanced planning – either when you complete your estate plan, or later before the onset of such impairments.  After Alzheimer’s has made it impossible for you to have legal capacity to sign documents, it is unlikely you’re circumstances will ever improve so that you parents will find you old.

Give us a call today

Factoring the potential for cognitive impairment into your estate plan doesn’t have to be a headache. In fact, a little effort now by legally designating who you want to be in charge and what you want them to do can have a wonderful impact on you and your family later on. We can work together to ensure your estate plan is ready for whatever life throws your way. Give us a call today to find out how painless and cost-effective this process can be.

Avoid Living Probate: How to Keep Guardians and Conservators Out of Your Estate

While most long term care and estate planning to avoid guardianship - elder law attorney or estate planning attorneyproactive individuals know the importance of having a well-rounded estate plan, it is typically considered as something that will take effect
after they have passed away. But there are in fact many ways in which comprehensive estate planning can have a positive impact on your life while you are still around to reap the benefits.

Planning for Incapacity

Most people who reach old age come to a point at which they are no longer in a position to handle all of their affairs on their own. In many cases this incapacity is due to dementia or other cognitive impairments associated with the elderly. At that point, the decisions they’ve made with their estate planning attorney can have major repercussions on their lifestyle and the handling of their wealth.

Take Alex for example. Long before Alex retired from his long and successful career as an IT manager at a large corporation, he put a cursory estate plan in place with a will detailing who would get which of his assets upon his death. But, Alex didn’t update his plan as he aged. In his late seventies, he developed Alzheimer’s and it became unclear to his family how to proceed with his medical care and wealth management. Since Alex did not formally choose an individual to be in control of his affairs in the event of incapacity, it falls upon the court to appoint a guardian or conservator. Unfortunately, that’s where things get complicated.

What is guardianship?

Guardianship goes by a few other names, so it’s important to get familiar with various terms used to indicate similar and somewhat overlapping concepts. The other terms you may hear include “conservatorship,” “plenary guardianship,” and “living probate.”

It’s important to note that these terms are used in slightly different manners from state-to-state, with some states using “guardian” and “conservator” interchangeably. Others maintain the distinction of a guardian being a person who makes decisions about medical care and living arrangements, whereas a conservator makes decisions about property and assets. In either case, the guardian or conservator is essentially a substitute decision maker that’s authorized by the court to make decisions on behalf of the incapacitated person.

3 Reasons You Should Avoid It

In the process of living probate, the court tries to settle on solutions that will fit the incapacitated individual’s best interests. That being said, there is a much better way. Here are just a few of the reasons guardianship and conservatorship are not ideal fallbacks:

  1. Cost: To put it simply, living probate is expensive. The legal fees associated with court-appointed attorneys representing incapacitated individuals can chip away at their estates very quickly. Living probate also brings your affairs into the public sector.
  1. Privacy: Alex may not have wanted his family to have to experience the financial and emotional costs of his living probate court proceedings, but he may also have felt less than enthusiastic about his personal affairs being discussed in a public forum.
  1. Clarity: In addition to it being costly and a compromise of privacy, living probate is also full of guesswork. If Alex had assigned powers of attorney and established long-term care provisions in his estate plan, his affairs would be handled exactly as he wished in the event of his incapacity. When the court is involved, they usually apply default rules of state law, which means the legislature is essentially making some choices for you and your family.

How to Structure Your Estate Plan

So what does an individual like Alex need to do in order to avoid the chance of his family having to go through living probate? There are a few specific steps we can take to make in planning your estate to ensure your affairs never end up in a court-appointed guardian’s hands:

  • Powers of attorney: A complete estate plan includes named powers of attorney who will fulfill the roles of guardians and conservators in the event of your incapacity. The difference is that these individuals will be chosen by you rather than by the court. There are a number of different types of powers of attorney for specific purposes, such as a healthcare power of attorney or a general durable power of attorney, the latter of which controls the management of your finances.
  • Long-term care planning: Although you may never need long-term care, building a strategy for it into your estate plan will allow you to relax knowing that you’ll receive long-term care according to your wishes if that becomes necessary. This type of planning also helps protect the assets in your estate plan from being used up on medical expenses before going to your beneficiaries.

Avoiding guardianship and conservatorship through living probate is a relatively pain-free process if handled well ahead of time. Get in touch with us today to go over the parts of your estate plan that may need amending to give you and your family the best possible outcomes. We are here to help and can quickly get your estate plan in optimal shape.

New Medicare Rule Encourages Doctors to Test for Alzheimer’s Disease and Offer Care Planning

long term care planning for Medicaid eligibility to pay nursing home costsA new Medicare rule will promote earlier diagnosis of Alzheimer’s disease. Medicare will now reimburse primary care doctors who conduct an Alzheimer’s evaluation and offer information about care planning to elderly patients with cognitive impairment.

According to the Alzheimer’s Association, more than 5 million Americans have the disease. In addition, more than 85 percent of Alzheimer’s patients also have another chronic condition. But many are unaware that they have Alzheimer’s disease because they haven’t been diagnosed.

Under the new rule, primary care doctors who test patients for cognitive impairment can bill Medicare for their services. Testing for Alzheimer’s disease can involve taking a thorough medical history, testing a patient’s mental status, doing a comprehensive physical and neurological exam, and conducting blood tests and brain imaging. Previously, there was no specific Medicare reimbursement for dementia testing, so many doctors did not take the time to do it.

In addition, doctors can bill Medicare if they offer help to Alzheimer’s patients with care planning by providing information on treatments and services. Receiving early diagnosis and proper care planning can be critical for Alzheimer’s patients. According to Robert Egge, Alzheimer’s Association Chief Public Policy Officer, “Proper care planning results in fewer hospitalizations, fewer emergency room visits and better management of medication — all of which improves the quality of life for both patients and caregivers, and helps manage overall care costs.”

While Medicare will now pay for dementia testing and care planning, Medicare does not pay for long-term custodial care services for Alzheimer’s patients. Medicare’s nursing home coverage is limited to skilled care provided by a physical therapist, registered nurse, or licensed practical nurse.

Often families can preserve substantial assets by following legally allowable procedures to protect assets from spend down prior to qualifying for Medicaid, which does provide substantial support for long term care planning and custodial care services.  If you have a family member who may need long term care financial support, you should contact to help you determine if long term care planning or Medicaid planning may be beneficial for your family.

 

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Fighting Nursing Home Discrimination Against Medicaid Recipients

Nursing home discrimination against Medicaid residents is illegal.

nursing home discrimination against Medicaid recipients is illegalWhile it is illegal for a nursing home to discriminate against a Medicaid recipient, it still happens. To prevent such discrimination, nursing home residents and their families need to know their rights and how to fight nursing home discrimination against Medicaid beneficiaries.

The potential for discrimination arises because Medicaid pays nursing homes less than the facilities receive from residents who pay privately with their own funds and less than Medicare pays. Nursing homes are not required to accept any Medicaid patients, but Medicaid payments are a steady guaranteed payment, so many nursing homes agree to accept Medicaid recipients.

When a nursing home agrees to take Medicaid payments, it also agrees not to discriminate against Medicaid residents based on how they are paying. Nursing home discrimination against Medicaid recipients is illegal. Medicaid residents are entitled to the same quality of care as other residents. A nursing home cannot evict residents solely because they qualified for Medicaid.

Unfortunately, nursing home discrimination against Medicaid patients does occur, and the discrimination can take different forms. The nursing home may refuse to accept a Medicaid recipient or may require that a resident pay privately for a certain period of time before applying for Medicaid. When a resident switches from Medicare or private-pay to Medicaid payments, the nursing home may transfer the resident to a less desirable room or claim that it doesn’t have any Medicaid beds, which is illegal.

There is at least one way that nursing homes can treat Medicaid recipients differently, however. Nursing homes are allowed to switch residents who were privately paying for a single room to a shared room once they qualify for Medicaid. In addition, the nursing home is not required to cover personal and comfort care items, such as a telephone or television. In some states families are allowed to pay the difference to get a private room or the care item. Other states do not allow any supplementation.

If you feel you have been discriminated against by a nursing home, contact Florida’s long-term care ombudsman or your attorney.

For a guide to the 20 common nursing home problems, including discrimination against Medicaid recipients, click here.

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NJ Supreme Court Rules Medicaid Planning Attorneys Do Planning-Non-Lawyers Engaged In Unauthorized Practice of Law

Medicaid planning with Jacksonville Medicaid planning attorneys in FloridaJoining the states of Florida, Ohio, and Tennessee, the Supreme Court of New Jersey has found that Medicaid planning attorneys should handle Medicaid planning. Non-lawyers who apply the law to a Medicaid applicant’s specific circumstances are engaging in the unauthorized practice of law.  Florida’s Supreme Court decision last year, to the same effect, provides that a non-lawyer who engages in Medicaid planning is guilty of the unauthorized practice of law and is committing a criminal felony.

The NJ state Supreme Court received complaints that non-lawyers retained by families or nursing homes to assist with the Medicaid application process were providing erroneous or incomplete law-related advice. A state attorney ethics hotline received reports that non-lawyers charged “clients” large sums of money for what turned out to be faulty Medicaid-planning legal assistance. These actions caused the elderly victims to suffer significant financial losses.

The NJ state Supreme Court was asked for an opinion specifying what activities non-lawyers may engage in and what activities are the unauthorized practice of law. The Committee on the Unauthorized Practice of Law concluded that while non-lawyer Medicaid advisors may provide limited services, “[a]pplying the law to an individual’s specific circumstances generally is the ‘practice of law,’ and should be accomplished through Medicaid planning attorneys.  A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like,” as those items constitute the practice of law and should be done by Medicaid planning attorneys.

For the Committee on the Unauthorized Practice of Law’s Opinion 53, “Non-Lawyer Medicaid Advisors (Including ‘Application Assistors’) and the Unauthorized Practice of Law,” , click here.

The Medicaid laws are very complex, and deal with a number of overlapping legal doctrines.  When you need assistance with Medicaid planning, including the preparation of spend down plans, trusts, personal care contracts, Medicaid asset protection trusts, or other options that comply with the Medicaid laws, you should seek out experienced elder law or Medicaid planning attorneys for that assistance.  Otherwise, you and your family may also experience “significant financial losses.”

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The Elder Law Attorney’s Role in Medicaid Planning

Do you need an elder law attorney for even “simple” Medicaid planning?

The answer, as so often is the case in legal matters, is that it depends on your particular situation and circumstances, but in most cases, the prudent answer would be “yes” you do need an elder law attorney to help you accomplish Medicaid planning to preserve your family’s assets and qualify your loved one for Medicaid benefits to pay for nursing home care.

The social worker atelder law attorney explains medicaid rules your parent’s nursing home assigned to assist you with the preparation of a Medicaid application for your mother knows a lot about the program, but maybe not that one particular rule that applies in your case or the newest changes in the law, which can make all the difference in whether your mother’s application will be approved. In addition, by the time you’re applying for Medicaid, you may have missed out on significant planning opportunities, that could have helped your family preserve valuable assets.

The best option is to immediately consult with a qualified and experienced elder law attorney who can advise you on your family’s entire situation, at the first thought that a nursing home might be necessary. At the very least, the price of the consultation should purchase some peace of mind that things are being accomplished appropriately and in your family’s best interest. What you learn from such a consultation with an experienced elder law attorney can mean significant financial savings or better care for you or your loved one. Proper Medicaid planning may involve the use of trusts, transfers of assets, purchase of annuities or increased income and resource allowances for the healthy parent who is living at home.

The Medicaid laws and regulations collectively create a maze in which the non-lawyer can easily run into dead ends. The experienced elder law attorney is aware of recent changes in the law, the results of the latest “fair hearings” (which are written decisions by administrative judges ruling on appeals of Medicaid denials of benefits made by the Department of Children and Families), and information gathered from other elder law attorneys who involved in dealing with Medicaid matters on a daily basis.

Medicaid Planning Constitutes the Practice of Law and Should Be Undertaken by Elder Law Attorneys

Furthermore, the Florida Supreme Court has ruled in The Florida Bar Re: Advisory Opinion — Medicaid Planning Activities by Nonlawyers, SC14-211, January 15, 2015, that Medicaid planning, because of the requirement to understand and implement the statutes and regulations, constitutes the practice of law.  In that opinion, the Florida Supreme Court said:

 

“. . . the testimony revealed that non-lawyer Medicaid planners are essentially unregulated, as there are no licensing, education, or advertising requirements. . . .

elder law attorney provides medicaid planningTestimony described the type of harm caused by nonlawyer Medicaid planners which includes denial of Medicaid eligibility, exploitation, catastrophic or severe tax liability, and the purchase of inappropriate financial products threatening or destroying clients’ life savings. The potential for public harm is even greater when the nonlawyers put themselves in a position of reliance and advising the customer as to the proper course of action to take. In order to protect the public from harm, it is the opinion of the Standing Committee that the activities described herein constitute the unlicensed practice of law and should not be authorized.”

Consequently, non-lawyers who engage in Medicaid planning are involved in the unlicensed practice of law, which in Florida is a felony.

If you are going to consult with an experienced elder law attorney, the sooner the better. If you wait, it may be too late to take some steps available to preserve substantial assets for the family.  Whether your initial consultation is in advance of the actual need for Medicaid benefits to pay for nursing home care, or on a crisis basis because your spouse or elderly parent has just been determined to need Medicaid, we can help. To schedule a consultation, just call us at (904) 448-1969.

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Cost of Long Term Care Increases in 2016

cost of long term care from elder law attorney medicaid lawyer in jacksonville, floridaThe cost of long term care continues to rise, even if slightly for 2016 compared to 2015. The median cost of a private nursing home room in the United States has increased slightly to $92,378 a year, up 1.24 percent from 2015, according to Genworth’s 2016 Cost of Care survey, which the insurer conducts annually. Genworth reports that the median cost of a semi-private room in a nursing home is $82,125, up 2.27 percent from 2015. The rise in prices is modest compared to the 4.2 percent and 3.8 percent gains, respectively, in 2015.

Florida experienced increases in the cost of long term care similar to the national averages:

The price rise was even lower for assisted living facilities, where the median rate ticked up only .78 percent, to $3,628 a month. The national median rate for the services of a home health aide was $20 an hour, the same rate as 2015, and the cost of adult day care, which provides support services in a protective setting during part of the day, actually fell from $69 to $68 a day.

Alaska continues to be the costliest state for nursing home care, with the median annual cost of long term care in a private nursing home room totaling $297,840. Oklahoma again was found to be the most affordable state, with a median annual cost of long term care in a private room of $60,225, which did not increase in 2016.

The rates reported for the Jacksonville, Florida area include the following according to the Genworth study:

Home Health Care         Adult Cay Health Care     Assisted Living Facility     Nursing Home Care

Homemaker Services                                                                                                     Semi-Private Rooms

Annual Costs                      Annual Costs                              Annual Costs                     Annual Costs

$47,362                                 $20,930                                         $36,300                                 $85,045

While prices may not have increased drastically from last year, the survey found that Americans underestimate the cost of in-home long-term care by almost 50 percent. Thirty percent believe it will be less than $417 a month. In fact, an in-home aide working 44 hours a month would cost $3,861, according to Genworth. Proper spend down planning can allow you to qualify for Medicaid benefits to pay the cost of long term care in assisted living facilities and skilled nursing homes.

The 2016 survey was based on responses from more than 15,000 nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey was conducted by phone during January and February of 2016.medicaid planning lawyer elder law attorney to pay for cost of long term care

If your personal assets are not sufficient to cover the costs of long term care, and you do not have long term care insurance, then your only real option to pay for long term care, especially in a skilled nursing home, is to qualify for Medicaid benefits under the Florida Institution Care Program (ICP). We can help you preserve your remaining assets and qualify for Medicaid to pay for your long term care costs. If you, or a loved one, need skilled nursing home care, schedule an appointment with us to determine how we can help you qualify for Medicaid benefits to pay for nursing home care and other cost of long term care, and legally preserve your assets for yourself, your spouse and your family.