How Do I Find a Great Elder Law Attorney ?

Elder law attorneys specialize in legal affairs that uniquely concern seniors and their adult children, says Explosion’s recent article entitled “The Complete Guide on How to Find an Elder Law Attorney.”

Finding the right elder law attorney can be a big task. However, with the right tips, you can find an experienced attorney who is knowledgeable, has the right connections and fits your budget.

While, technically, a general practice attorney will be able to handle your retirement, Medicaid and even your estate planning, an elder law lawyer is deeply entrenched in elder law. This means he or she will have extensive knowledge and experience to handle any case within the scope of elder law, like the following:

  • Retirement planning
  • Long-term care planning and insurance
  • Medicaid
  • Estate planning
  • Social Security
  • Veterans’ benefits; and
  • Other related areas of law.

While a general practice lawyer may be able to help you with one or two of these areas, a competent lawyer knows that there’s no single formula in elder law that applies across the board. That’s why you’ll need a lawyer with a high level of specialization and understanding to handle your specific circumstances. An elder law attorney is best suited for your specific needs.

A referral from someone you trust is a great place to start. When conducting your elder law lawyer search, stay away from attorneys who charge for their services by the hour. For example, if you need an specialized attorney to work on a Medicaid issue, they should be able to give you an estimate of the charges after reviewing your case. That one-time flat fee will cover everything, including any legal costs, phone calls, meetings and court fees.

When it comes to any attorneys, nothing says more than experience. An experienced elder law lawyer has handled many cases similar to yours and understands how to proceed. Reviewing the lawyer’s credentials at the state bar website is a great place to start to make sure the lawyer in question is licensed. The website also has information on any previous ethical violations.

In your search for an elder law attorney, look for a good fit and a high level of comfort. Elder law is a complex area of law that requires knowledge and experience.

Reference: Explosion (Aug. 19, 2020) “The Complete Guide on How to Find an Elder Law Attorney”

 

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Protecting Assets with a Revocable Trust
Senior couple planning their investments with financial advisor

Protecting Assets with a Revocable Trust

Protecting Assets with a Revocable Trust – The question raised in the article “Fact or Fiction: I Can Protect My Assets from a Nursing Home with a Revocable Trust” from New Hampshire Business Review is frequency asked, and the reason for it is understandable. Any form of long-term home care is costly and can quickly decimate a lifetime of savings. There are ways to protect assets, but a revocable trust is not one of them.

There are some reasons why a person might find a revocable trust attractive. For one thing, if the grantor (the person who creates the trust and is also the trustee (i.e., the person in charge of the trust)), there is no loss of control. It is as if you still own the assets that are in the trust. However, when you die, the assets in the trust don’t go through the probate process. Instead, they go directly to the beneficiaries named in the trust documents. A revocable trust also lets you make specific provisions for beneficiaries and beneficiaries with special needs.

There is a trust that can be used to protect assets from the cost of long-term care. It is the irrevocable trust, which must be properly prepared by an estate planning attorney and done in a timely fashion: five years before the person needs to go to a nursing home.

The difference is in the name: the irrevocable trust is irrevocable. Once it is created, you (the grantor) may not change it. Once an asset is placed in the trust, you don’t own it. The trust is the owner. You can’t change your mind. The grantor may also not serve as the trustee of the trust.

You have to be prepared to give up complete control of the assets that go into the trust.

Some people think simply by handing over their assets in the trust to their children, they’ve solved everything. However, there are problems. If your children are sued or run into debt problems, that lifetime of saving which is now in their control is also subject to creditors or claims. If you need to enter a nursing home within five years of your handing over the assets, you also won’t be eligible for Medicaid.

The best course of action is to meet with an estate planning attorney and discuss your overall estate plan. You should have a frank conversation about your wishes, what kind of a legacy you want to leave behind and your bigger picture for the world after you’ve passed. The attorney will help work out a plan that will protect you, your spouse, your assets and your family.

Remember that an estate plan is not a one-and-done document. Every three or four years, or as “life happens” and changes occur in your life, you should touch base with your attorney. A new family member by marriage, birth or adoption, may call for some changes to your estate plan. It might also be affected by the sadder events of life; death, divorce, or a significant health change. All require a phone call and a discussion to ensure that your estate plan still achieves your goals and protects those you love.

Reference: New Hampshire Business Review (July 30, 2020) “Fact or Fiction: I Can Protect My Assets from a Nursing Home with a Revocable Trust”

 

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What Is a Caregiver Agreement ?

The idea that a family member or trusted friend may be paid to take care of an aging parent or sibling in a caregiver agreement is a welcome one. However, most family members don’t understand the legal complexity involved in privately paying for care, says the recent article “Paying a family member for care” from The Times Herald. Payments made to a family caregiver or a private caregiver can lead to a world of trouble from Medicaid and the IRS.

This is why attorneys create caregiver agreements for clients. The concept is that the care and services provided by a relative or friend would otherwise be performed by an outside person at whatever the going rates are within the person’s community. The payment should be considered a fully compensated transfer for Medicaid eligibility purposes and should not result in any penalty being imposed if it is done correctly.

This is more likely to be avoided with a formal written caregiver agreement. In some states, like Pennsylvania, a caregiver agreement is required to be sure that the payments made to the caregiver are not deemed to be a gift under Medicare rules.

The caregiver agreement must outline the services that are being provided and the rate of pay, which can be in the form of weekly, monthly or a lump sum payment. This is where it gets sticky: that payment should not be higher than what an outside provider would be paid. An excessively high payment would trigger a red flag for Medicaid and could be viewed as a gift.

Medicaid has a five-year look back period, where the applicant’s finances are examined to see if there were efforts to minimize the person’s financial assets to qualify for Medicaid. If any transfers of property or assets are made that are higher than fair market value, it’s possible that it will be viewed as creating a period of ineligibility. That is why it’s so important to have a contract or written agreement in place, when a family member or other person is hired to provide those services and is paid privately.

There are also income tax consequences. The caregiver is considered a household employee by the IRS. They are not considered to be an independent contractor and should not be issued a 1099 to reflect their payment. If that is done, it could be considered to be tax evasion.

Speak with an estate planning attorney about crafting a caregiving agreement and how to handle the tax issue, when privately paying for care. They will help avoid putting Medicaid eligibility in jeopardy, as well as avoiding problems with the IRS.

Reference: The Times Herald (Aug. 13, 2020) “Paying a family member for care”

 

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Nursing Home Visits with Grandma

In spots where Nursing Home Visits have resumed, they’re much changed from those before the pandemic. Nursing homes visits must take steps to minimize the chance of further transmission of COVID-19. The virus has been found in about 11,600 long-term care facilities, causing more than 56,000 deaths, according to data from the Kaiser Family Foundation.

AARP’s recent article entitled “When Can Visitors Return to Nursing Homes?” explains that the federal Centers for Medicare and Medicaid Services (CMS) has provided benchmarks for state and local officials to use, in deciding when visitors can return and how to safeguard against new outbreaks of COVID-19 when they do. The CMS guidelines are broad and nonbinding, and there will be differences, from state to state and nursing home to nursing home, regarding when visits resume and how they are handled. Here are some details about the next steps toward reuniting with family members in long-term care.

When will visits resume? As of mid-July, 30 states permitted nursing homes visits to proceed with outdoor visits with strict rules for distancing, monitoring and hygiene. The CMS guidelines suggest that nursing homes continue prohibiting any visitation, until they have gone at least 28 days without a new COVID-19 case originating on-site (as opposed to a facility admitting a coronavirus patient from a hospital). CMS says that these facilities should also meet several additional benchmarks, which include:

  • a decline in cases in the surrounding community
  • the ability to provide all residents with a baseline COVID-19 test and weekly tests for staff
  • enough supplies of personal protective equipment (PPE) and cleaning and disinfecting products; and
  • no staff shortages.

Where visits are permitted, it should be only by appointment and in specified hours. In some states, only one or two people can visit a particular resident at a time. Even those states allowing indoor visits are suggesting that families meet loved ones outdoors. Research has shown that the virus spreads less in open air.

Health checks on visitors. The federal guidelines call for everyone entering a facility to undergo 100% screening. However, the CMS recommendations don’t address testing visitors for COVID-19.

Masks. The federal guidelines say visitors should be required to “wear a cloth face covering or face mask for the duration of their visit,” and states that allow visitation are doing so. The guidelines also ask nursing homes to make certain that visitors practice hand hygiene. However, it doesn’t say whether facilities should provide masks or sanitizer.

Social distancing. The CMS guidelines call on nursing homes that allow visitors to ensure social distancing, but they don’t provide details. States that have permitted visits, state that facilities enforce the 6-foot rule.

Virtual visits. Another option is to make some visits virtual. Videoconferencing and chat platforms have become lifelines for residents and families during the pandemic. Continued use after the lockdowns can minimize opportunities for illness to spread.

Reference: AARP (July 22, 2020) “When Can Visitors Return to Nursing Homes?”

 

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Does Apathy Predict Dementia?

Depression is often thought to be a risk factor for dementia. However, this may be because some depression scales used by clinicians and researchers partially assess apathy, according to scientists from the Universities of Cambridge, King’s College London, Radboud, and Oxford.

Medical Express’ recent article entitled “Apathy, not depression, helps to predict dementia” reports that the study was published in The Journal of Neurology, Neurosurgery & Psychiatry. It is the first research to examine the link between apathy, depression and dementia in those with cerebral small vessel disease (SVD). SVD may happen in one out of three elderly individuals and causes about 25% of all strokes. SVD is the most common cause of vascular dementia.

The researchers looked at two independent cohorts of SVD patients, one from the United Kingdom, and the other from the Netherlands. Across both, they saw that patients with higher baseline apathy, as well as those with increasing apathy over time, had a greater risk of dementia. In contrast, neither baseline depression nor change in depression had any noticeable impact on the risk of dementia.

The findings were consistent despite variation in the severity of participants’ symptoms. Researchers say this means they could be generalized across a broad spectrum of SVD cases. The relationship between apathy and dementia remained after controlling for other well-established risk factors for dementia, including age, education, and cognition.

The lead author, Jonathan Tay, from Cambridge’s Department of Clinical Neurosciences commented, “There has been a lot of conflicting research on the association between late-life depression and dementia. Our study suggests that may partially be due to common clinical depression scales not distinguishing between depression and apathy.”

Tay also noted, “Continued monitoring of apathy may be used to assess changes in dementia risk and inform diagnosis. Individuals identified as having high apathy, or increasing apathy over time, could be sent for more detailed clinical examinations, or be recommended for treatment.”

The study examined more than 450 participants—all with MRI-confirmed SVD—who were recruited from three hospitals in South London and Radboud University’s Neurology Department in the Netherlands. Each was assessed for apathy, depression, and dementia over several years. In the UK cohort, about 20% of the participants developed dementia, while just 11% in the Netherlands cohort did. This is likely due to the more severe burden of SVD in the UK cohort. In both groups, patients who later developed dementia showed higher apathy, but similar levels of depression at baseline, compared to patients who did not.

“This implies that apathy is not a risk factor for dementia per se, but rather an early symptom of white matter network damage,” Tay explained. “Understanding these relationships better could have major implications for the diagnosis and treatment of patients in the future.”

Reference: Medical Express (July 13, 2020) “Apathy, not depression, helps to predict dementia”

 

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North Dakota – End-Of-Life Care Visits and COVID-19 ?

End-Of-Life Care Visits and COVID-19 – Since implementing the restrictions in March as the pandemic spread, the State of North Dakota has exempted hospice providers and other end-of-life care clinicians from its regulations restricting access. However, the new definition broadens the types of individuals who can still access those facilities, says Hospice News’ recent article entitled “North Dakota Redefines Nursing Home End-of-Life Visits During Pandemic.”

“Our knowledge about the coronavirus and data on its local impact across our state continues to grow,” said North Dakota Department of Human Services Executive Director Chris Jones. “We appreciate the opportunity to work with the Task Force on Reuniting Residents and Families, the North Dakota Long-Term Care Ombudsman and our colleagues in the North Dakota Department of Health to develop common sense guidelines that reflect new information and are responsive to the needs of individuals and their families.”

Under the state’s new definition, the term used by the state, “compassionate end-of-life care visitation,” now will add social visits for skilled nursing or assisted living residents, who are showing signs or symptoms of psychosocial or medical decline from isolation that exceed normal parameters.

The expanded definition comports with recent guidance to states from the Centers for Medicare and Medicaid Services (CMS).

North Dakota’s revised state guidelines stipulate that these situations are only permitted on a very limited basis. They shouldn’t be thought to be routine. The decision to permit these types of visits would be made by the resident’s clinical interdisciplinary team. Facilities must report these cases to the state’s Vulnerable Population (VP3) Task Force.

Nursing homes have been particularly attacked by COVID-19 in the pandemic. More than 111,000 confirmed COVID-19 cases to date have happened among residents of skilled nursing facilities, in addition to more than 76,000 suspected cases, according to the U.S. Centers for Medicare & Medicaid Services (CMS). These infections have resulted in more than 30,000 deaths.

More than 50% of hospice provider respondents to a Hospice News reader survey said that they thought their organizations would benefit from the states’ “reopening,” compared to 30% of respondents who said it would have a negative impact.

Fewer than 20% thought removal of restrictions wouldn’t impact their clinical or business operations.

A major factor in these results was the expectation that it would become less difficult for hospices to access patients receiving care in nursing homes or assisted living facilities.

Reference:  Hospice News (June 30, 2020) “North Dakota Redefines Nursing Home End-of-Life Visits During Pandemic”

 

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What You Should Know about Constructive Trusts

Trusts can be a great part of estate planning, if you want to avoid probate or minimize estate taxes. A special trust is a constructive trust, which can be established to remedy situations where property that belongs to you is held unfairly by someone else. This type of trust has limited uses, but it’s important to know how it works.

KAKE.com’s recent article entitled, “What Is a Constructive Trust?” explains that a constructive trust can be established by the a judge, when two parties are fighting over property. It could be created when an individual is unfairly given ownership over property—because of a mistake or because of their misdeeds.

As an example, if you have a living trust, and your trustee commits a breach of fiduciary duty that lets him assume control of trust assets. You could go to court to have a constructive trust established to correct the situation in what’s known as an “equitable remedy”.

First, a constructive trust requires that there be some sort of court action between a property owner and another person who’s unfairly benefiting from the property. This could be your elderly dad’s caretaker, who coerces him into signing over the title to his property. Since you’re your dad’s legal guardian, you bring a lawsuit against the caregiver on his behalf. If the court finds that the caretaker abused her position to gain access to the property, a constructive trust can be set up to correct this, and the property could be put in the trust temporarily, while its ownership is transferred back to your father’s estate.

Constructive trusts are typically meant to be temporary relief, when your property or assets have been unfairly taken by another. The person benefiting from the property must return it to the trust. If the property can’t be returned, they have to pay the trust its equivalent monetary value.

You might need a constructive trust, when the transfer of property is connected to undue influence, duress or coercion, mistake, embezzlement, breach of trust, breach of fiduciary duty, fraudulent misrepresentation or concealment, or the commission of a crime (including theft or homicide). You may also need a judge to impose a constructive trust, when there is a broken oral promise to convey property. A constructive trust might also be needed, if there’s a dispute over how someone’s property should be distributed after they die.

The big difference between constructive trusts and other types of trusts is how they’re created and their purpose. A constructive trust doesn’t have a trustee. Instead, the person you’re suing is appointed trustee by the judge. He’s responsible for ensuring that the disputed property is returned to the trust, or its monetary equivalent.

Again, a constructive trust is designed to correct whatever situation caused you to unfairly lose ownership of your property but nothing else.

Reference: KAKE.com (June 5, 2020) “What Is a Constructive Trust?”

 

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Are Seniors Prone to COVID -19, because of Weakened Immune Systems?

Are Seniors Prone to COVID -19? According to the CDC, eight out of every 10 COVID-19 deaths in the U.S. have been in adults age 65 and older. This age group also accounts for nearly 70% of all coronavirus hospitalizations nationwide.

That’s because the prevalence of underlying health conditions, like diabetes and heart disease, as we grow older plays a critical role. However, the experts at the Oklahoma Medical Research Foundation contend that there’s another answer for part of the blame: our immune system, the biological network whose job is to protect us against foreign invaders like viruses. That’s from The Oklahoman’s recent article entitled, “Weakened immune system leaves elderly prone to the virus.”

“The general line of thinking is that immunity falters with normal aging, just like our muscle mass and cognitive function,” said Dr. Hal Scofield, a physician-scientist at Oklahoma Medical Research Foundation. “You don’t see pro athletes playing after age 50. We have a shelf life physically, and that goes for immunity, too.”

That decreasing immunity means that the elderly are more prone to serious complications not only from COVID-19 but also from seasonal illnesses, such as the flu.

T cells and B cells, special types of white blood cells involved in the immune response, offer clues to why immunity declines with age, according to OMRF immunologist Susan Kovats, Ph.D. “We don’t know all the specifics behind the decline in immune function with aging, but we do know that both T cell and B cell function deteriorates with age,” she said.

T cells are created by a small organ in your chest called the thymus, “which slowly shrinks over time and is essentially gone in your adult years,” said Kovats.

Meanwhile, the ability of B cells to produce highly specific antibodies that inactivate viruses also drops as we get older. B cell numbers decline to a greater extent in elderly men, Kovats said. This may explain why they are more apt to die from severe COVID-19 disease. These age-related declines explain why, for example, a virus like shingles is more likely to appear from a weakened immune system later in life.

“If you’ve had chickenpox, the shingles virus stays in your body forever,” said Dr. Scofield, who also serves as associate chief of staff for research at the Oklahoma City VA. “When you’re young, your immune system keeps the virus in check. As you age, your body begins to lose its defenses and that increases your likelihood of getting shingles.”

The weakened immunity that is seen in the elderly has also made the annual flu shot less effective for that age group. The CDC reports that just 25% of people age 50 and older were protected during the 2018-19 flu season.

“The immune responses to vaccines are not as good overall in the elderly, and this is a legitimate concern as COVID-19 vaccines are hurried to the finish line,” said Kovats. “A lot of work is being done to try to understand why the immune response weakens, and significant effort has gone into changing how vaccines are made for this age group, in order to solicit better immune responses.”

Because seniors are prone to Covid, researchers at Oklahoma Medical Research Foundation and across the U.S. are investigating the mysteries of aging, as well as the immune system, to better protect a population that now has over 50 million Americans over the age of 65.

“COVID-19 is unlike anything the body has ever seen before, and older people do not respond well to pathogens or viruses they’ve never been exposed to,” Scofield said. “This is going to be a challenge, but the more we learn about how the immune system works, the better we’ll be at protecting our seniors in future outbreaks.”

Reference: The Oklahoman (June 2, 2020) “Weakened immune system leaves elderly prone to the virus”

 

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How Do I Care for a Dementia Patient in the Pandemic ?

Dementia Patient in the Pandemic – Roughly 60% of dementia caregivers receive assistance from relatives, friends or service providers. However, actions like New York PAUSE and county shelter-in-place orders have kept those caregivers from visiting. Without relief, caregivers find themselves on duty around the clock with no one else to help.

NNY360’s recent article entitled “Dementia caregiving and COVID-19: Make a meaningful connection through activities” acknowledges that caregiving is a full-time job without the pandemic. Now, caregiving for a Dementia Patient in the Pandemic crisis has shown how caregiving is really a cooperative activity, with spouses, siblings, nieces, nephews, friends, children and grandchildren each taking a role.

Even though people are confined to their homes, it is critical not to get caught in a rut of watching television for hours on end or taking extended naps.

Keeping the mind active is important because anxiety, depression and feelings of isolation are common for those living with dementia and their caregivers. Social distancing increases that confinement and can exacerbate those conditions.

The Alzheimer’s Association suggests planning simple activities and establishing a daily routine, as those activities provide purpose and meaning, while providing a means to strengthen the bond between the person living with the disease and the caregiver.

These activities don’t have to be fancy. It can be a simple game of cards or a jigsaw puzzle, or something routine like setting the table or folding clothes. The important thing for caregivers to remember is to be patient and provide guidance. It’s a chance to do something together and take your mind off of what’s happening in the world.

The most important part of any activity is the sense of accomplishment. The person completing the task should feel that they were helpful. Contributing to the household can give them a sense of a job well done. Here are a few ideas:

  • Listen to your favorite music, because it has calming qualities and just having it on in the background can improve their mood.
  • Reminiscing activities can incorporate many things around the home. For example, page through an old photo album or watch home movies. If you haven’t started a family history, use the time to record stories and memories on your mobile device.
  • Make your favorite recipes. This is a great way to get someone with memory loss involved in the process. Use a recipe like making bread or cookies where you can roll up your sleeves, wash your hands and get to work kneading the dough.
  • Do tabletop activities like puzzles, LEGOS, or folding laundry.
  • Do crafts like coloring, painting, knitting, making jewelry, or nature printing with leaves or flowers from your home.

Reference: NNY360 (May 3, 2020) “Dementia caregiving and COVID-19: Make a meaningful connection through activities”

 

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Elder Abuse Continues as a Billion-dollar Problem

Aging baby boomers are a giant target for elder abuse scammers. A report issued last year from a federal agency, the Consumer Financial Protection Bureau highlighted the growth in banks and brokerage firms that reported suspicious activity in elderly clients’ accounts. The monthly filing of suspicious activity reports tied to elder financial exploitation increased four times from 2013 through 2017, according to a recent article from the Rome-News Tribune titled “Financial abuse steals billions from seniors each year.”

When the victim knew the other person, a family member or an acquaintance, the average loss was around $50,000. When the victim did not have a personal relationship with their scammer, the average loss was around $17,000.

What can you do to protect yourself, now and in the future, from becoming a victim of elder abuse ? There are many ways to build a defense that will make it less likely that you or a loved one will become a victim of these scams.

First, don’t put off taking steps to protect yourself, while you are relatively young. Putting safeguards into place now can make you less vulnerable in the future. If you are diagnosed with Alzheimer’s or another form of dementia five or ten years from now, it may be too late.

Create a durable power of attorney as part of your estate plan. This is a trusted person you name as your legal representative or agent, who can manage your financial affairs if need be. While it is true that family members are often the ones who commit financial elder abuse, you’ll need to put your trust in someone. Usually this is an adult child or a relative. Make sure that the POA suits your needs and is properly notarized and witnessed. Don’t count on standard templates covering your unique needs.

Consider the guaranteed income approach to retirement planning. Figuring out how to generate a steady stream of income as you face the cognitive declines that occur in later years might be a challenge. Planning for this in advance will be better.

Social Security is one of the most valuable sources of guaranteed income. If you will receive a pension, try not to do a lump sum payout with the intent to invest the money on your own. That lump sum makes you a rich target for scammers.

Consider rolling over 401(k) accounts into Roth accounts, or simply into one account. If you have one or more workplace retirement plans, consolidating them will make it easier for you or your representative to manage investments and required minimum distributions.

Make sure that you have an estate plan in place, or that your estate plan is current. Over time, families grow and change, financial situations change and the intentions you had ten, twenty or even thirty years ago, may not be the same as they are today. An experienced estate planning attorney can ensure that your wishes today are followed, through the use of a will, trust and other estate planning strategies.

Resource: Rome News-Tribune (April 27, 2020) “Financial abuse steals billions from seniors each year.”

 

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