Saving the family home from the high cost of nursing homes and other long term care expenses is high on the set of priorities of most middle-class seniors. Elder law attorneys have educated clients on the various solutions to this ...   more »

Life Estate Benefits A transfer of real property by deed with a retained life estate can protect the property from having to be consiered an available asset when seeking Medicaid coverage of long term care expenses. Subject to the look-back ...   more »

SELLING THE HOUSE The problem with a life estate is that it can lead to disastrous consequences when the house is sold during the life of the life tenant.

Assuming that there is no concern with the need to obtain ...   more »

The Medicaid ramifications must also be considered when using a Life Estate. If the life tenant is not on Medicaid, then in the case we have been discussing in previous newsfaxes, 50 percent of the sales proceeds will be returned ...   more »

What is Elder Law? Elder Law is an area of the law that deals primarily with planning for incapacity. Many documents used in Estate Planning overlap with Elder Law planning such as Powers of Attorney, Health Care Proxies and Living ...   more »

Many are covered by Medicare for home health services. To receive such services, each beneficiary must: 1. Require skilled nursing care on a periodic basis, physical or speech therapy or need to maintain occupational services after skilled nursing or therapy has stopped; 2. Be under the care plan of a physician; 3. Receive services from a Medicare certified home health agency; and 4. Be confined to the home("homebound"). 42 U.S.C. Sections 1395f(a) and 1395n(a).

Section 507 of the Medicare, Medicaid and SHIP Benefits Improvement Act of 2000 (BIPA) has recently clarified that certain absences from the home by a beneficiary receiving Medicare home health care benefits are permissible. Moreover, beneficiaries may continue to receive such services when they need to leave the home, specifically for absences associated with the need for "therapeutic, psychosocial, or medical treatment in an adult daycare program that is lecensed and certified by a State, or accredited, to furnish adult day-care services in the State.

BIPA has also allowed for the attendance of religious services without disqualifying the person from Medicare home health care. In fact, BIPA has provided that an absence from home resulting from the attendance of a religious service "shall be deemed to be an absence of infrequent or short duration" thereby classifying the person as homebound to receive continued Medicare home health benefits.

[HCFA has provided "Q & As" to offer guidance to beneficiaries and professionals associated with Medicare home health services. The "Q & As" address the definition of "homebound" and clarify definitions of therpeutic services, psychosocial services, the specifics regarding state licensing and certification.] The Q & A's are available on the websites of HCFA and Medicare at www.hcfa.gov and www.medicare.gov.
Source: The National Senior Citizens Law Center in the Washington Weekly - May 2, 2001. Volume XXVII No. 21.

Let's start with the basics. A durable power of attorney is a document in which you can delegate certain powers over your financial life to another person or persons. While it takes effect immediately upon signing, it is most useful at a time when, for a variety of reasons, you can no longer act on your own behalf. In fact, what makes the power of attorney "durable" is the very fact that your agency can act for you when you, the principal, suffer from some disability. For the power of attorney to actually be "durable", the document must simply state that the agent can act regardless of any subsequent disability of the principal, or words to that effect. Since there is a high probability that an older client may face such a period of disability, a durable power of attorney is one of the essential tools that must be implemented in any estate plan for an older adult.

Most of us may know this already, but what we do not know is the extent of ELDER ABUSE associated with durable powers of attorneys. We do know who the abusers tend to be though: known abusers are family members, professionals, caregivers and scam artists, who use the durable power of attorney for their own benefit and of the benefit of their principal.

Persons who are older and sicker are among the most vulnerable people in our society, especially those who become dependent upon their caregivers. As such, they have a dual problem; they are both a likely target for abuse and may be unable or reluctant to report such abuse. In fact, victims of such abuse may be threatened by their abusers with physical or emotional harm, or withdrawal of care, or may simply be unable to comprehend that they are being abused in the first place.

This problem of elder abuse through the misuse of a power of attorney is expected to grow as the population of frail elderly grows. This is especially true because we also expect the use of durable powers of attorney to grow. Why not, the durable power of attorney is the most simple and cost efficient method of handling a person's finances. Moreover, they are very easy to obtain. Just click on to the internet or walk in any stationary store and you can have one in minutes. But perhaps they are too readily available.

Clearly, those who do not use legal counsel will be unaware of the document's scope, limitations and potential for abuse. We'll go into detail in a future newsletter.

Although this document starts with a bold faced warning, few read it, and those who do fail to understand its inherent legalese. In fact, it has been reported that many older principals sign their documents based only upon the limited ...   more »

A common example in an Elder Law attorney's office might go something like this...A son may come into the office and say that his Mom is bedridden and has been diagnosed with the beginnings of Alzheimer's disease. Immediately we are ...   more »

Second marriages, particularly those later in life, can pose issues and challenges which require careful consideration. Prenuptial Agreement - a written agreement or contract drafted by lawyers and signed by the prospective husband and wife before the marriage - are ...   more »

An essential part of drafting a will or a living trust involves collecting information about personal and financial objectives of a client. Most clients are very clear as to whom they wish to leave their personal and financial property - ...   more »

We began our discussion last week on the importance of proper designation of beneficiaries in estate planning documents, such as Wills and Living Trusts, and on beneficiary designation forms for life insurance, IRA's, 401K's and certain bank accounts.

The most ...   more »

A GRAT (grantor retained annuity trust) is a technique for transferring property to members of the grantor's family at a reduced transfer tax cost. A grantor creates a GRAT by transferring property to a trust and retaining a "qualified annuity ...   more »

The vast majority of caregiving for the senior population is not provided in nursing homes or assisted living facilities. Most seniors are able to receive care at home with the help of their family. In some cases, this is an ...   more »

Generally, we look to state inheritance law (i.e., NYS Estates Powers and Trust Law) to know who are the "distributees" of an estate. Distributees are those individuals who are entitled to inherit estate assets which do not contain beneficiary designations ...   more »