Is Your Estate Plan Current?

Most people don’t have an estate plan in place — period. That type of procrastination can cause a LOT of problems for the individual and their family. Costs. Delays. Unintended distributions. Other unintended results.

And for those who do have a plan in place, take a look to see if your documents are valid. It isn’t just a matter of who gets your assets upon death. It’s also a matter of who will take care of you if you need care, how your assets will be used for your care, and whether we can take special steps to preserve assets to go to your spouse and family following your death.

If you already have a plan in place, you are to be congratulated for doing so. Now you have to make sure that your plan will still work for you. Will your documents provide the intended result?

Families regularly rely upon legal documents for years only to find out later that the documents weren’t signed properly, that the documents don’t comply with the needs of an elderly or mentally incapacitated person, or that the documents were written under a prior estate tax law that has changed so much that the documents should have been changed as well. Don’t let this happen to you or your family.

It’s not uncommon for people in their 60s, 70s, or 80s to have lost one of their children, and maybe even a spouse. What about the share of your assets that was to go to that child? Do your documents clearly state your wishes as to whether it should go to the deceased child’s spouse, their children, or their siblings? I’ve had many clients who are shocked to learn what the result would be from their current documents.

Remember, it isn’t just about who gets your assets when you’re gone. It’s also about who will make decisions for you while you’re alive, how your assets will be used for your benefit while you’re living, and then how your assets will pass after your death. Do yourself and your family a huge favor by making sure that you have the right legal documents in place now, and that they accurately represent your wishes. Don’t wait!

When is Estate Planning Appropriate?

I recently read an article written by a nationally renowned estate planning attorney who said, “If the elder law attorney can advise clients early enough, . . . they can alleviate later problems.” Yes, that’s true, and we often see the problems of people who don’t get it done right.

A local woman came to me recently because her long-term friend had died six weeks earlier. He had gifted her 50% of his home four or five years ago, and the other 50% of the home was held in his trust to be distributed to her following the man’s death. The problem was that the attorney who prepared the trust wasn’t familiar with elder law rules and Medi-Cal, so now the State of California will seek repayment of his Medi-Cal bill. He had been in the nursing home for about five years prior to his death, so his debt back to Medi-Cal will be around $500,000 to $600,000. The woman who was to get the home will now have to pay the debt to the state if she wants to keep the home for herself. Neither the woman, nor the friend who died, were ever advised that there could be a problem with her getting the rest of the home upon the man’s death. Sad result.

Estate planning and elder law planning are not the same thing. You need to have an estate plan that is prepared with an eye towards elder law needs so that you are protected in the event that certain circumstances arise. It’s like buying your granddaughter a car that has seatbelts and multiple airbags. You hope that the lifesaving features are never needed to save her life in an accident, but you also hope that they’re always working and she’ll be protected in the event of an emergency. That’s why we use those things.

If you drive year after year and never have an accident, then you didn’t need to be wearing your seatbelt all that time. But we wear seatbelts whenever we’re in a car simply because it provides that needed protection “just in case,” and we never know when that just in case event may occur. Do you know of anyone younger than you who had a stroke or suddenly died? It happens, and many people aren’t prepared for it.

Do you have proper estate planning documents in place? Will they work when you need them to work?

A very experienced financial planner called me recently with a serious problem. He had confirmed a few years ago that his client had an estate plan, but the client, now age 82, recently suffered a serious stroke and the documents wouldn’t work as the elder had planned. Stanford Hospital was refusing to release the man to return to his assisted living facility because the elder’s documents were not in order and the elder wasn’t able to make decisions for himself. The elder was being kept at Stanford Hospital and paying the bill there while he was also paying the bill at his assisted living facility. The lack of proper documents left him trapped, and three other attorneys that the financial planner consulted were unable to help the elder.

Don’t leave your future to chance and hope. Take care of yourself and your loved ones. Make sure that you have a quality estate plan in place, and make sure that you understand it.


Medicare and Hospital Stays

Medicare health insurance covers about 54 million people. About 11 million of those people will end up with a hospital stay each year. Some of those will be there for just a day or two, and some will be there for much longer.

What if you or your loved one is being discharged and you think it’s too early for the discharge? What if you think another day or two, or even more, would make a big difference in the person’s health, stability, and recovery?

As one expert said, “There’s enormous pressure on discharge teams to get patients out.”

We know that hospitals are notorious for discharging patients early, but what can a patient or their family do when the hospital is forcing a discharge? They can’t force you to stay, but can they force you to leave?

Medicare has a special process to protect Medicare patients from early discharge, but you have to act fast. The process is actually called a “fast appeal.” Filing the appeal is easy, but you have to know the rules, and the timing is critical.

A hospital stay produces a lot of paperwork, but you need to pay attention. Within two days of your hospital admission, and certainly prior to discharge, you should get a notice called “An Important Message from Medicare about Your Rights.” This is sometimes called the Important Message or IM. If you don’t get this notice, ask for it. When you get it, hang onto it. The notice will give you the name and phone number for the BFCC-QIO. Ha! That’s the Beneficiary and Family Centered Care Quality Improvement Organization. Long and awkward name.

That office, sometimes called the Medicare Quality Improvement Organization (QIO), is the entity charged with handling fast appeals and complaints about the quality of care. If the patient is on Medicare, this office is there to help. But, you have to call them to get them involved.

If you think that the Medicare-covered hospital services are ending too soon, you have the right to a fast appeal, but you need to call and request the fast appeal of a pending discharge (1) ideally before midnight on the day before you are to be discharged, or (2) certainly no later than the day you’re scheduled to be discharged. This must be done before you leave the hospital. Once you speak with someone at the QIO, or leave a message at the QIO, your appeal has begun.

If you ask for the fast appeal, you can stay in the hospital while you wait for the QIO’s decision from an independent physician, and even if the QIO agrees that you are ready to be discharged, you won’t be responsible for paying the hospital charges (except for applicable coinsurance and deductibles) incurred through noon of the day after the QIO gives you its decision.

The appeal time buys some time for the patient, but only Medicare patients who have been admitted to the hospital qualify for this type of appeal. If the patient was only under “observation status,” this presents other issues and there is a separate appeals process, so make sure that it’s clear whether the patient has been officially admitted to the hospital. Some hospitals have been known to hold a patient for several days on observation status, and since the patient was never admitted, that creates other problems – especially if the patient and family were mistaken regarding the patient’s status.

Be informed. Know your rights. Protect yourselves and your loved ones.