Author: mward

Don’t Go Home!

Don’t Go Home!

If you or a loved one is in the hospital, the natural thing is to want to go home. That’s clear. But what if you’re in the nursing home? Same thing. Residents want to go home, and their families want them home.

But what if there’s nobody to care for the ill person? What then? Think carefully before you take someone home. Can they be left alone? Can they take care of their activities of daily living? Will they be safe?

I had a case last year with a severely disabled man who was being discharged from the hospital. His second wife could no longer care for him, so she wanted him placed in a nursing home. The man’s daughter from his first marriage, along with one of his sisters, decided to take matters into their own hands and kidnap the disabled man from the hospital. After two nights at the daughter’s house, they realized that they could not care for the man, so they took him back to the hospital emergency and just dropped him off and left him there. Yes, absolutely CRAZY, but it happened.

The hospital finally discharged the gentleman to a nursing home, and now Medi-Cal is paying for his care and he has 24-hour nursing care available to him. Everything finally worked out well once the family stopped fighting and finally followed my instructions — but it took a court case and the judge’s order for the daughter and sister to back off. Unnecessary expense and stress for the family.

A couple of weeks ago I had a similar situation where the disabled man had been living with his caregiver for several years, but then fell and banged his head and had to go to the hospital emergency. The doctor said he could no longer go home, but the discharge nurse at the hospital was demanding that the man go back to live with his caregiver, despite the doctor’s statement that he should not go back there. The disabled man had been fighting with his caregiver for years, but the main reason he could go back there was because the caregiver was his 94-year-old father! Yes, it was clear that the 94-year-old father could no longer care for his severely disabled son, and that for the health of both of them, the son had to be placed in a skilled nursing facility.

Another family came to me for help with their mother. She needs the care of the nursing home, but the social services person at the nursing home is telling her husband that he should take her home and she’ll be much better off at home on hospice. Really? The husband is 91 years old and already has significant dementia. The adult children know that he’s unable to care for their mother, but the nursing home staff is trying to convince him to just take her home. Why would they do such a thing? Because the nursing home can make more money by getting her out and using her bed for someone who comes directly from the hospital on Medicare (not Medi-Cal) and the nursing home has a much higher profit on the Medicare patients. It’s not about the care — it’s about the nursing home profitability. And unless you know the ins and outs of the billing and the system, you’ll be at a disadvantage when working with hospital and nursing home staff who are trying to bamboozle you for their own benefit.

Know your rights. Be informed. Work with an experienced elder law professional to guide you.

Gift or Inheritance?

Gift or Inheritance?

If you’re planning to make a gift or leave something to someone after your death, think about the value you’re giving, whether it’s real estate (Prop 13?), stocks, cash, or IRA/401k.

Who are you giving it to? I recently had a new client who couldn’t come to see me because his wife was failing fast in the hospital, and then she died. The old trust done years ago was a mess, but my client was very clear about his wife’s wishes, and he wanted to respect those wishes.

The surprise came when he told me that his son-in-law said that he had spoken with the attorney for the daughter and son-in-law, and supposedly it was better to not leave anything directly to the daughter, but to the joint trust of the daughter and son-in-law. Really? I already knew that the family didn’t trust the son-in-law, and this could have been a huge disaster.

If you leave something to your daughter, and she later gets divorced, we can go back via “tracing” and show that that money or property was hers before she comingled it as joint property with her husband. This puts a “line in the sand” to establish the property as her sole and separate property at some point in time. Even if a divorce court grants a portion to the husband, it will generally only be a portion of the increase in value after the initial gift.

I saw this previously in another family where the son-in-law convinced his wife’s parents that they needed to gift the house to him and their daughter to get the father on Medi-Cal. This was not true then, and it is not true now, but the wife’s parents had made the gift at the urging of their son-in-law, so half of the million dollar property became his at the moment of the gift. If the young couple ever gets divorced, the son-in-law gets half of the property. That wasn’t what the parents wanted.

Don’t let these things happen in your family.

I have another case now where the daughter wants to sell her mother’s house before the mother dies, but this will cause them to owe about $600,000 in capital gains tax. Yes, that’s a huge amount of tax, but it’s an expensive home with a lot of gain from when they built it in the 1950s. The mother is currently in the nursing home and may not live much longer, so why sell now and pay $600,000 in tax? If the house is sold after the mother’s death, they won’t pay that tax. Yes, they’ll save about $600,000. If they need money now, we have other solutions to get some money before the mother passes.

Why would they sell now and give away $600,000 in tax? It appears that the financial advisor is pressuring the daughter to do this. Why would the financial advisor push for this? Because the financial advisor will then invest over $2 million of the proceeds to create wealth from fees for the financial advisor. Who is this advisor really working for?

People generally want to leave something to their family, friends, or a charity or two, but think it through before making the gift. Should it be done before your death? After? Will you need that money if you’re ill? What are the tax consequences of giving it now as opposed to giving it at death?

When you’re planning your gifts, talk to an expert first, and make sure that the expert isn’t making suggestions based upon their own self-interest.

Start Estate Planning Early

Do you have the Right Durable Power of Attorney?

Do You Have the Right Durable Power of Attorney?

What is a Power of Attorney? Sometimes it’s called a Financial Power of Attorney. It’s a document that gives authority to your named Agent to act for you in various situations.  That may be paying your bills, accessing your bank accounts, closing your accounts, or even selling your residence. Well planned power of attorney documents give considerable authority to your appointed Agent, so you need to make sure that you have named a trusted person to act as your Agent.

Have you named a successor Agent? Maybe you have named your spouse or your oldest child as your Agent, but what if that person can’t act for you. Have you named an alternate person? Is your power of attorney a “durable” power of attorney? If it is durable, this means that your Agent can act for you even if you are incapacitated. Generally, you want the document to be durable, and you want to appoint an alternate Agent so that you are better protected.

Is your power of attorney “springing,” “conditional,” or “immediate”? Both springing and conditional powers of attorney have been outlawed in some states due to the problems that they can create, but I often see them being used by attorneys who are not familiar with those issues. If a person is being scammed or making bad decisions, and they have a springing power of attorney that requires one or two doctors to state that the person cannot handle their own affairs, the big question is whether doctors will be willing to sign such statements, or whether the person can avoid going to the doctor so that there is no diagnosis of dementia, or whether the person can fool the doctor during a five minute visit so that the doctor thinks the person is still okay to handle their own affairs.

Is your power of attorney elder law friendly? An example of the importance of this is whether your Agent can get you onto government benefits such as Medi-Cal if you need assistance at home or you want Medi-Cal to pay for your nursing home costs. It’s not just a matter of the application for the benefit, but the power of attorney must also allowing transfers and reclassification of assets for eligibility for those benefits and for protection against the state placing a lien on those assets. These are critical issues for many elders, and the lack of a power of attorney, or having the wrong power of attorney, can prohibit your family from taking the necessary actions to protect you and your loved ones.

I have seen many individuals and families face financial hardship because a proper power of attorney was not in place. Getting a good power of attorney is not difficult. Not having the right one in place when you need it can be devastating.

Every adult should have the right kind of power of attorney in place and have the best Agent and successor Agent available to take action to help them. It’s one of the most important documents that a person can have. If you don’t have a durable power of attorney in place, get one. If you have one, make sure that it is detailed enough to allow your Agent to take the necessary actions that may be needed to protect you, to care for you, and to protect your assets.

 

 

Improper Nursing Home Charges

A recent article in the New York Times stated, “We have a big problem paying for long-term care in this country, although most people don’t wake up to the challenge until it affects their family directly.”

Many families overpay simply because they don’t know the rules and aren’t aware of their rights. Don’t let that happen in your family. Make sure that you learn the basics before you need to get care for someone, and make sure that your legal documents will allow the individuals you trust to make the right decisions for you.

There’s a lot of confusion on when Medicare will pay for a skilled nursing facility. A Federal court case in early 2013 clarified that the nationwide standard applying Medicare benefits for long-term care in skilled nursing facilities was incorrect. The old rule-of-thumb standard was the “Improvement Standard” that resulted in many seniors being inappropriately denied Medicare coverage for something that should have been covered by Medicare. Now, more than five years after that court decision, many nursing homes are still misapplying the standard and denying Medicare benefits to residents.

Despite the court decisions, we still regularly see nursing homes acting in violation of the law with overbilling and improper evictions. Why? The nursing homes can increase their profits by violating the law, and most families never know that they’ve been scammed into making unnecessary payments. The insurance companies go along with this too because it saves them billions of dollars annually when they don’t have to pay the residents’ portion of the nursing home bill that Medicare doesn’t cover.

Most nursing homes follow the law, or can be nudged to follow the law, but some nursing homes act aggressively with false billing and improper evictions.

I was recently preparing to sign documents at a nursing home in the late afternoon, and then the family called to advise me that my client had died that morning. When the family came to see me a week later, I found out that they had been charged a little over $10,000 at the beginning of the month. I couldn’t understand why the family had been charged when the elder was still covered by Medicare. I thought it was wrong, and I advised them to go back and seek a refund.

A few weeks later the family was happy to advise me that the nursing home had immediately given them back a little over $6,000. Wow! … That’s great, but what about the remaining $4,000? Why wasn’t that returned?

I told the family to send the nursing home a signed letter and ask for a written reply from the nursing home explaining exactly why the nursing home was keeping the $4,000 amount and not returning the entire amount to the family of the deceased person.

After three letters from the family and still no response, the family phoned the nursing home and was told that they could come in and discuss the issue. The nursing home cleverly never put anything in writing. They simply explained that it was a billing error. They said that the deceased woman should have been kept on Medicare, but it was now too late.

That’s wrong in many ways. The nursing home could have returned the improperly charged amount to the family, and the nursing home could have corrected their error with Medicare. The more likely scenario, however, is that Medicare paid the nursing home and the nursing home also kept the family’s money. That’s double dipping. It’s called fraud.

Learn how things work. Don’t allow the nursing home to charge for something the elder is already entitled to under Medicare benefits.

 

Good News Bad News

Good News / Bad News

 

Covid has been bad news with illness and death for millions, the loss of loved ones and caregivers for millions, and economic turmoil for millions more.

When the pandemic first took off, the hospitals needed thousands of respirators. The good news was that the government had thousands in storage. The bad news was that the vast majority of those didn’t work. Good news and bad news.

Despite the losses from the outbreak, the good news has been the success of the vaccines we have available in the US. In other countries, the success has varied.

The good news in the Seychelles, Bahrain, Chile, and Mongolia was that they got out of the gate very fast with high vaccination rates in their populations. The bad news was that all four of those countries used Chinese vaccines which apparently weren’t very effective, and soon all four of those countries ranked in the top 10 countries of the worst outbreaks worldwide. Yes, good news and bad news.

What about your estate plan? If you have one, that’s good news. If it won’t work when you need it, that’s bad news. Will it work? People counted on those Chinese vaccines to work, but it appears that they weren’t effective.

Does your estate plan reflect your current wishes? Are the right people in charge to look after your interests? Will the results be good news or bad news?

We often see trusts that don’t reflect the person’s current wishes because they just haven’t gotten around to making the updates. But in some cases, the trust was wrong from the beginning. It simply wasn’t a good trust.

In a recent case with a husband and wife, the trust says that if either is incapacitated, they agree to resign from being Trustee. The next paragraph gives a committee of people who will decide whether the person is incapacitated, and if two of the three say the person is incapacitated, then the person agrees to resign. (Committee of three is pastor and two medical doctors.) The problem with the trust is that there is no third step for removal of the Trustee if he or she refuses to resign, and now the couple has waited too long and the husband’s dementia has progressed to the point where he no longer has the mental capacity to resign. I cannot allow him to sign any documents at all. He can say his name, but he doesn’t know that he’s married to his wife, and when asked for his town, city, street, or number of children, he can only repeat his name. — He can no longer sign any legal documents.

The wife has exhausted their liquid assets in paying for their stay at an assisted living facility, and now she’s facing the prospect of selling their residence and paying a huge amount of capital gains tax. Due to many different circumstances, and waiting too long to act, she’s now facing a dilemma and has a poorly written trust.

Where do you stand on this issue for yourself? Do you have a good trust? Does it reflect your current wishes of who you want in charge and how you want any remaining assets distributed after your death?

If you don’t have a trust, go see a qualified attorney who practices elder law and estate planning. If you have a trust, make sure it reflects your current wishes and will work when you need it to work.

Protect yourselves. Protect your families.

Dementia and Your Finances

Dementia and Your Finances

A large study by a major financial institution a few years ago found that fears about dementia outweighed the fear of all other possible illnesses combined ­— and with good reason. Yes, more than from cancer, heart disease, and other illnesses combined.

If you have some wealth saved up through your own efforts or through an inheritance, how are you protecting that wealth in the face of future dementia?

The most obvious problems that come up are the scams that face seniors as they age, but there are also issues with basic financial decisions. One study found that our financial skills peak at age 53, so how good are you at making decisions at 75, 80, or 85? Think about it. Will you still be making good decisions, or will you just think you’re making good decisions.

Giving up sole control of your investments and savings may be harder than giving up control of the keys to your car. But it may be critically important to preserve the assets for the well-being of you and your spouse, or to have those assets passed onto loved ones in the future.

One 90 year old client asked me to help him review his taxes because he couldn’t figure out why he suddenly owed so much. Well, even though he didn’t need any additional income above his monthly Social Security and pension, his financial advisor had suggested he liquidate his smaller IRA account and withdraw the $150,000 balance. Really? Why? Now, the client owed income tax on the $150,000 withdrawal of funds he didn’t even need. It was a huge mistake, but he said he was simply following his advisor’s recommendation.

And who will manage your accounts once you die or have dementia or a stroke? One man, who was in the very early stages of dementia, claimed that he was still capable of managing his assets at 20 different institutions. Yes, 20 different institutions! I asked him how his wife would manage all of these accounts if he couldn’t. He was adamant that he was still fine, but his wife admitted that she knew nothing about the accounts and didn’t even know the names of the institutions that held their funds. What would happen down the road?

Since 2018, brokerage firms have been required to ask customers to designate a “trusted contact” who can be notified in case of possible problems, but less than 25% of clients have provided the name of a contact.

And what about the growing number of internet investment accounts that have no paper statements being mailed to the investors? How will a spouse or adult child access those accounts if they don’t have your passwords or don’t even know which institutions to contact to find your money?

I’m not against technology, and I’m not against using more than one institution for your investment accounts, but who else knows how to access that money if we need it for you and your family while you’re disabled or after your death? And how many different accounts do you really need?

Think about what you can do to make it easier for trusted people to help avoid problems if you’re in decline, and also making it easier for trusted people to access your assets while you’re incapacitated or after your death.