What is Hospice & Palliative Care and Who is Eligible?   no comments

Posted at 6:39 pm in Articles,Elder Law FAQ

Hospice vs Palliative Care

Hospice care essentially means “comfort care” and is intended for patients with a terminal prognosis, typically diagnosed with a life expectancy of six months or less, regardless of age. The goal is to make such a patient, whose condition cannot be cured or improved,  as comfortable as possible  in a warm, supportive environment.  All appropriate medication, medical supplies and equipment are included, as well counseling and spiritual support.

Palliative care may be available to anyone of any age suffering from physical and emotional pain and suffering, including that person’s family, and is not tied to a limited life expectancy. Palliative care focuses on the symptoms that cause physical and emotional pain following diagnosis of an illness, and includes medication to alleviate suffering and enhance the quality of life.

Hospice care may be provided in one’s own home, or in a dedicated hospice facility, or in a long-term care facility. Some counties provide free non-medical hospice care services, typically provided by trained volunteers. Perhaps the largest source of hospice care coverage is provided by the Medicare Hospice Benefit, which is available to individuals over 65 years of age. Since this benefit covers virtually everything relating to hospice care, one does not have to be concerned about out-of-pocket costs.

How does one get the Medicare Hospice Benefit?  The patient must satisfy four key requirements:

  • must be eligible for Medicare Part A
  • must have a terminal illness of six months or less
  • must choose hospice care instead of routine Medicare benefits and sign a form certifying that they are making this choice; and
  • must be in a Medicare-approved hospice program

Medicaid, private insurance or pre-paid health plans typically cover hospice most services. One should check their eligibility requirements and scope of coverage.  To be eligible for such coverage, one must have a prognosis of six months or less.

Written by RobG on April 20th, 2018

What is Guardianship?   no comments

Posted at 10:32 pm in Elder Law FAQ

What is Guardianship?

Guardianship refers to the authority granted to a person by the Court to take care of a disabled person’s person and / or property. If a family member or someone in need is unable to manage his or her affairs due to frailty, long-term illness, disability or mental incompetency, you can petition the court for guardianship.

A person is deemed to be competent unless a court has determined otherwise. Before making a decision, the court appoints an attorney to represent the interests of the alleged disabled person, and that attorney provides the court with a written report. The alleged disabled person’s assets and income needs to be reported to the court, and there are strict rules governing the management and accounting of the assets of the guardianship estate.

The court may, but is not required to appoint the petitioner as guardian. There is no specific test to be met for a guardianship award. The court takes into account all the facts and circumstances and uses its discretion to make an equitable determination. An experienced attorney can assist you by explaining how a court may view the particular case and what should be done to satisfy the court to increase your chances of being appointed.

A guardianship order can be obtained in a day or two in an emergency situation, otherwise the process can take a month or several months. The cost, delay and administrative inconvenience of a guardianship can be avoided by having a durable general power-of-attorney signed before one becomes incompetent.

Planning and timing is important. Everyone, and senior citizens especially, should meet with an attorney with experience in these matters to review their basis estate planning needs and plan for disability. Having a power-of-attorney in place will make it easier for your representative to act quickly on your behalf and avoid the stress, delay, inconvenience and expense of a guardianship proceeding.

Contact us now to inquire about our elder law services.

Contact Baltimore, Maryland Elderly Family Attorney

Do I need to sign over my house and savings to pay for the nursing home cost of care?   no comments

Posted at 7:24 pm in Elder Law FAQ

Do not listen to what the nursing home office tells you! In many cases, the family home is or can be protected. Experience has shown that nursing home business office managers and Medicaid assistants do not understand key aspects of the Medicaid laws.  You could end up paying a whole lot of money to the nursing home that you didn’t need to!

Whether the issue is keeping your home or your savings, the Medicaid laws a re complicated and different rules apply depending on the facts and circumstances.

The most important first step is to consult with an elder law attorney, who can evaluate your case and explain your rights and options.

Retain an experienced Elder Law Lawyer to represent your interests. The nursing home only cares about what is good for the nursing home.

When you have the information you need to understand your Rights & Options, you will be able to make sound decisions. See the next question regarding asset protection planning.

Contact us now to inquire about our elder law services.

Contact Baltimore, Maryland Elderly Family Attorney

Written by RobG on February 28th, 2016

Should I sign a nursing home contract?   no comments

Posted at 7:18 pm in Elder Law FAQ,Learning Center

You should always review a proposed Nursing Home Contract with an Elder Law Lawyer before signing or providing significant financial information to the nursing home.

While most people prefer not to enter or place a loved one in a nursing home, there are times when, despite one’s best intentions, one has no alternative. Because nursing home care is so expensive, typically round $9,000 (in 2016), it is essential to consider the potential impact of nursing home care on one’s finances and to take advantage of whatever planning opportunities may exist. By doing so, you will maximize your options to protect the family assets and ensure that the community spouse is not left destitute.

Nursing homes have tremendous expenses, and their contracts are designed to protect the nursing home as much as possible. Although there are laws that protect nursing home residents and their families from over-bearing contracts and abuse, it is up to you to seek professional guidance and review of the contract before you sign it. You also want to be sure not to assume personal liability for the resident’s nursing home expenses. By obtaining professional legal advice before you sign anything, you will allow your attorney to show you how to avail yourself of income and asset protection planning opportunities that may no longer be available after the contract has been signed.

Some nursing home office managers will tell you they can help you apply for Medicaid and that you don’t need a lawyer.  Beware!  Experience has shown the nursing home assistants who do this often do not understand key aspects of the Medicaid laws and do not tell you what you can keep or advise you how to protect your assets.  And if the Medicaid application is delayed or denied, the nursing home will say they were only helpying you with the application and will hold you responsible. Can you imagine being suued by the nursing home for $18,000, $27,000 or more?  Invest in a professional Elder Law Consultation with an Elder Law Attorney so that you can understand your Rights and Options and make an informed decision.  

The decision over whether to place an elderly parent in a nursing home often leads to family tension among children and siblings.  Our experience includes relationship counseling and pragmatic problem solving.  Having a neutral professional consider the  various points of view and motivations can go a long way to easing family tension and finding a solution all or most can accept.

The quality of care your loved one receives at a nursing home depends a great deal on how much time you spend visiting and talking with the care-givers. The less interest you show, the greater the likelihood of neglect.

Contact us now to inquire about our elder law services.

Contact Baltimore, Maryland Elderly Family Attorney

Written by RobG on February 28th, 2016

What is the Spousal Elective Share?   no comments

Posted at 1:30 pm in Articles,Elder Law FAQ,Probate FAQ

The purpose of the spousal elective share  law is to provide some protection to a spouse against being disinherited by granting the surviving spouse a right to elect to receive a percentage of the decedent’s estate instead of what, if anything, is provided in the Will. See Estate & Trusts Article 3-208.  The statute also provides how the elective share may be waived (3-205).

Spousal election used to apply only to assets in the probate estate. Non-probate assets were exempt. Many states, including Maryland, now provides that spousal election extends to the augmented estate, i.e. which includes non-probate assets. The rationale for augmenting the scope of the assets that can be reached is to protect a spouse against estate planning designed to move assets out of the probate estate to reduce or eliminate a spouse’ elective share. There are exceptions, and in some instances matters are not always clear-cut.  For instance, a pre-nuptial agreement or a marital separation agreement may negate the spousal election. The distinction here, is that these are consensual agreements.

In the context of Medicaid paying for long term nursing home care, if the Medicaid recipient’s spouse predeceases, the Medicaid recipient is still entitled to his or her elective share.  His representative must claim the elective share timely and report this claim to the Dept. of Social Services managing the case. Failure to do so will result in the non-claimed assets being treated as a gratuitous transfer, which will trigger a penalty period and make the Medicaid recipient ineligible for continued Medicaid benefits. The Medicaid recipient’s representative may also become personally liable.  In the context of Medicaid eligibility, the State’s Medicaid Recovery Lien does not extend to the augmented estate. 

One must following the procedure and file the election timely or the right to elect against the Will will lapse. These are matters that should be discussed with an attorney exeprienced in Elder Law and probate matters as soon as possible.

 

Maryland Marriage Law Attorney

Written by RobG on November 6th, 2015

DO I REALLY NEED A PRE-NUPTIAL AGREEMENT?   no comments

Posted at 11:35 am in Articles,Elder Law FAQ

The key purpose of a pre-nuptial agreement is financial protection of assets owned by each spouse prior to the marriage, including income protection and liability for alimony, and can include assets acquired during the marriage. Should your new spouse become entitled to half of everything you own immediately upon your becoming married simply by virtue of being married to you?  Doesn’t it make sense to give the relationship time to prove whether and to what extent you have a true partnership in a future together?  If you were mistaken or misled and either party wants out of the marriage, are you really okay with giving up half your stuff?

A second key purpose of going through the pre-nuptial agreement process is that the process itself is an incredibly effective learning and bonding experience. Your learn a lot about how each other thinks, what they want and how they respond to and resolve differences.  This process can give you a terrific sense of validation in your choice of a partner and the confidence you need to move forward with peace of mind!

Marriage is more than milk and honey; marriage is an economic partnership that can have substantial financial impacts over time. The point is that if you want to provide for your spouse, be generous and so forth, you can provide for this in a sensible, graduated manner that protects you against unexpected revelations about your spouse and against people referred to as ‘gold-diggers.”  The latter type of people look for and prey on well off, often lonely, people, who they subtly manipulate, and when they feel the time is right, provoke a failure of the marriage and claim half, or more, of the assets.

Insisting on a pre-nuptial agreement does not imply that you don’t trust the person you love. It means you are intelligent enough to recognize that being in love doesn’t mean you should impulsively give away the farm without first allowing the relationship to stand the test of time. You want to be sure the person you are marrying is marrying you for the right reasons, that you are marrying that person for the right reasons, and that your goals and approach to reaching those goals are compatible. Do you really want to be with someone who is reluctant, or refuses, to consider and validate your concerns?

Over 60% of marriages end in divorce!  A relationship should be satisfying, with good communication, exchanges of ideas, learning how to compromise, a healthy sex life, fun times and working together. You should feel you are a team. Of course, there are some exceptions where people have disabilities and other life-changing issues. If this isn’t true of your relationship, have you really thought through what you want for the long haul?  Diving into a lottery pool where the odds are not in your favor is, simply put, not smart. Make sure you know what you are looking for in a spouse and whether the person you have chosen meets those criteria. Although managing a relationship can be challenging at times, and takes some effort and consideration to make smart choices, a good, healthy, sustainable relationship should not be hard work.  Do not ignore red flags! – This is the time to get some help to figure out how to handle the problem, how to re-evaluate and decide what is best for you.

The reality is that sometimes people are not who you think they are.  For some people, marriage is a passport and the culmination of an effective courtship. The sense of “mission accomplished” can mean there is no reason to try any longer and one can revert to one’s true self.  Surprise, surprise!    And people change. Goals change. Looks and outlooks change. Trust and loyalty can turn into mistrust and betrayal.  You can be doing everything right and it’s just not good enough.  In some cases, nothing is ever good enough.  The reasons unexpected or unforeseen changes occur are infinite. The reality is that change happens, often when you least expect it. Protect yourself! Protecting yourself does not mean you need to do so at the other’s expense. There is no place for a sense of entitlement.

If you are a young couple wanting to start a family, neither owns much, and you wish to build a life together, in most cases, a pre-nuptial agreement is not necessary. However, making sure you have good reasons to believe your are right for each other to make this journey together is still very important. Consulting together with an estate planning attorney/counsellor to review your thoughts as to careers, investments, retirement planning, decision-making, basic legal planning, and so forth, – before you get married may be very helpful in learning more about how each other thinks and how well you can discuss and resolve issues. This process may incease your sense of confidence or it may raise red flags that will give you reason for pause.

When one party is substantially wealthier, or if one has been married before, one person is considerably older, or there are other important considerations and interests that warrant protection against marital property claims if the marriage doesn’t work out, it makes sense to explore, with a professional, whether a pre-nuptial agreement is appropriate for you.  If you find yourself hesitating to invest the time or money to do so, ask yourself whether securing your financial security and happiness is important to you. If you care so little about protecting your own interests, do you really expect others to care about your wishes and needs?  Sensible planning is a smart investment in your financial security and peace of mind!

Again, … why should someone become entitled to a windfall solely by reason of having married someone of substance? Why should “half” or more be fair just because one got married? There is a huge difference in sharing equally the fruits of what a couple contributed during their marital partnership, and being forced to share with a taker and user. – There are many different ways to contribute to a marriage partnership and talking through that early on is important too.

Don’t you want to have a better understanding of the challenges, the risks, the pitfalls and the techniques to better equip you going forward?   The right adviser can be a cross between a mentor, a coach, a guidance counselor, a strategic planner, a marriage counselor, an investment counselor, an insurance counselor, and more!    If your intended spouse is not right for you, wouldn’t you rather find out now than after you’re married, have children, buy a house together and who knows what else you have committed yourself to?  For all these reasons, you owe it to yourself to invest in a thorough marriage partnership consultation?

A pre-nuptial agreement can provide for greater sharing as the marriage partnership proves its stability over time and ensure that the value of other spouse’s contribution to the marriage (in all ways), is fairly addressed. However, it makes no sense that a marriage partner who brings little into the marriage should be able to benefit at the expense of the other spouse or have an economic incentive to have the marriage fail. Bear in mind that a pre-nuptial agreement can be highly customized and creative to provide solutions for a variety of needs and concerns.  The bottom line is that it doesn’t hurt to get some good professional guidance early and enable yourself to decide how best to move forward with confidence, … and it may hurt you very badly if you don’t!– You are the master of you own destiny!

Contact Baltimore Pre-nuptial Attorney

Written by RobG on November 6th, 2015

When Does a Medicaid Penalty Period Begin?   no comments

Posted at 6:39 pm in Articles,Elder Law FAQ
Q:

I understand Medicaid’s five-year look back period and its transfer penalty. Most advice I see says that if money has been gifted, you should not apply for Medicaid until the five-year period has passed. What if the amount of money is only around $25,000? If the penalty period starts once you are approved to receive Medicaid, wouldn’t it be better to apply ASAP so the penalty period starts? Or do you have to already be in a nursing home to be approved? The person in question owns nothing and his income is close to poverty level. This person could live at home for several more months with some in-home care, but he won’t be able to wait five years. Should his family get his Medicaid application in ASAP?


A:

The Medicaid penalty period does not work that way. A Medicaid penalty period will not begin until the person making the transfer has (1) moved to a nursing home, (2) spent down to the asset limit for Medicaid eligibility, (3) applied for Medicaid coverage, and (4) been approved for coverage but for the transfer. In other words, the penalty period does not begin until the nursing home resident is in the nursing home and out of funds. For example, if an individual in a state where the average  cost of care is $5,000 a month transfers $100,000 on April 1, 2013, moves to a nursing home on April 1, 2014, and spends down to Medicaid eligibility on April 1, 2015, that is when the 20-month penalty period will begin, and it will not end until December 1, 2016. For more information about Medicaid’s asset transfer rules,click here. If you are considering applying for Medicaid, we recommend you consult with an elder law attorney.

Written by RobG on October 29th, 2015

Do You Pay Capital Gains Taxes on Property You Inherit?   no comments

Posted at 6:16 pm in Articles,Elder Law FAQ

Knowing the “cost basis” of your property is important for tax purposes, but proving cost basis can be difficult. Cost basis adjusts at death, so it is a good idea to appraise property when a joint owner dies. Cost basis is the monetary value of an item for tax purposes. When determining whether a capital gains tax is owed on property, the basis is used to determine whether an asset has increased or decreased in value. When a property owner dies, the cost basis of the property is “stepped up.” This means the current value of the property becomes the basis. When a joint owner dies, half of the value of the property is stepped up.

When you inherit property, such as a house or stocks, the property is usually worth more than it was when the original owner purchased it. If you were to sell the property, there could be huge capital gains taxes. Fortunately, when you inherit property, the property’s tax basis is “stepped up,” which means the basis would be the current value of the property.

For example, suppose you inherit a house that was purchased years ago for $150,000 and it is now worth $350,000. You will receive a step up from the original cost basis from $150,000 to $350,000. If you sell the property right away, you will not owe any capital gains taxes. If you hold on to the property and sell it for $400,000 in a few years, you will owe capital gains on $50,000 (the difference between the sale value and the stepped-up basis).

On the other hand, if you were given the same property, as opposed to receiving it upon the owner’s death, the tax basis would be $150,000. If you sold the house, you would have to pay capital gains taxes on the difference between $150,000 and the selling price. The only way  to avoid the taxes is for you to live in the house for at least two years before selling it. In that case, you can exclude up to $250,000 ($500,000 for a couple) of your capital gains from taxes.

 

Written by RobG on October 29th, 2015

Will Medicare or the VA Pay for My Mother-in-Law’s Home Health Care?   no comments

Posted at 5:31 pm in Articles,Elder Law FAQ
Q:

My mother-in-law is 85 and suffered a stroke for which she now receives medication. The stroke left her occasionally incontinent, with some confusion and weakness. We are looking for an in-home care person and wondered whether Medicare would compensate some or all of the cost. Also, her husband was a veteran who served at the end of World War II. Are there military benefits available to her? The in-home care has been medically recommended.

 

A:

Medicare does pay for some in-home health benefits. To qualify, your mother-in-law must be confined to her home (meaning that leaving it to receive services would be a “considerable and taxing effort”), her doctor has ordered home health services for her, and at least some elements of the services she receive are “skilled” (intermittent skilled nursing care, physical therapy or speech therapy). She can receive up to 35 hours a week of services. Unfortunately, receiving these benefits can sometimes be difficult, and you may need to advocate on her behalf. For more information about Medicare’s home health benefit, click here.

Your mother-in-law may also be entitled to benefits from the Veteran’s Administration. If she has fewer than $80,000 in assets, she may qualify for Aid & Attendance benefits from the VA. For more information on this, click here.

Written by RobG on October 29th, 2015

Can the Nursing Home Stop Billing Medicare for My Mother’s Treatment?   no comments

Posted at 5:22 pm in Articles,Elder Law FAQ
Q:

My mother spent four days in the hospital and Medicare approved 100 days of skilled nursing facility care after her stay. After 48 days, the nursing home cut off her therapy and ended her Medicare benefits, without notifying us either in writing or by phone. She was not discharged from the nursing home, however, and we have received a bill for the final 51 days of care. This was our first notification that the nursing home was no longer billing Medicare. The physical therapist said that my mother has reached the level she was at prior to her hospital stay, but she is still receiving treatment at the nursing home for the same condition she was hospitalized for. The nursing home said it’s too late to appeal their decision because we are outside the 30 days. Is this legal? The therapists said Medicare would deny any further treatments because she regained the ability to feed herself and to push her wheelchair with her feet. Is that true?


A:

Based on the information you provide, your mother may well have grounds for appeal. The facility should have provided her with a Notice of Non-Coverage prior to terminating Medicare. They may have and your mother may not have known what it was or what to do with it. Ask for a copy and information about whether and how it was given to your mother. It will give you information on how to contact the Quality Improvement Organization for your region, which monitors these issues and appeals. You are too late for an expedited appeal but I’d be surprised if you can’t appeal at all. It sounds like you have one or two issues to argue on appeal: potentially lack of adequate notice, and certainly based on what you say whether your mother should have been terminated prior to the full 100 days. For more information, go to the Center for Medicare Advocacy website which provides a self-help package for appealing Medicare skilled nursing facility denials.

For more information about Medicare appeals, go here:http://www.elderlawanswers.com/can-you-appeal-if-medicare-refuses-to-cover-care-you-received–14429.

Written by RobG on October 29th, 2015