Welcome to my new blog, entitled "Elder Law Alabama". I have resisted the blog mania since I thought that most of my clients would not be bloggers or bloggees, but was informed today that many of their (adult) children would learn more about me if I had a blog, so here goes.
As you can see, I am an attorney who limits my work to assisting seniors and their families understand the morass of agencies, benefits and pitfalls associated with getting older. For example, many veterans are not aware of Aid & Attendence benefits that are basically a pension benefit that they can qualify for, and as a result, they go without. They don't have to though. Or many people assume that they can't qualify for Medicaid because they have a house, a car or even Social security income. They can and we can tell you how.
Read through the various posts and see if your question has been answered. If it hasn't though, please shoot me an email or call my office to set up an appointment. I am happy to assist you and your family wrestle with these issues.
Private Duty Home Care for Seniors
Loss of Independence or the Last Step to Maintain Independence?
By John Graham, BrightStar Healthcare
Having a private duty caregiver come into the home to assist a senior can be a great way to delay or eliminate the need for the eventual move to an assisted living facility or nursing home. This option allows the senior to stay in their homes longer and continue to maintain a more independent lifestyle with personalized help from a caregiver.
Seniors want to stay at home as long as possible. This option provides the opportunity to extend the amount of time someone has at home with family and friends, near their life’s possessions, enjoying hobbies in a familiar and safe environment.
It is important to note the difference between “Home Health” and “Private Duty Home Care”. Home Health is a term typically associated with a Medicare benefit following hospitalization in which an agency provides temporary, limited visits in the home during recovery. Private Duty Home Care is a permanent service provided to anyone, anywhere on a private-pay basis, and can be either “Medical and Non-Medical” or only “Non-Medical”.
Companies offering “Non-Medical” care include help in companionship, light housekeeping, meal preparation and transportation. Other companies offer more “Medical” care such as assistance with activities of daily living (bathing, dressing, toileting, ambulation, and eating). For seniors who have more advanced care needs, the “Medical” option of having skilled nursing in the home is also available. All levels of care are available to fit your schedule 24/7. Brightstar Healthcare is one of the few Birmingham companies that offers both “Medical and Non-Medical” In Home Care.
Essentially, private duty home care allows seniors to continue to live and age in place in their own home. Delaying or eliminating the need to move into a facility keeps them happier and will save money for future medical or long term care costs. Private duty home care is not the right answer in every situation but it should be a consideration as an option with very positive benefits.
Thoughts on Your Will
Congratulations! You are considering getting around to (finally) drafting your Will. It is a big step and one that requires some work on your part, but the end-result will give you peace of mind and it will be money well-spent. If you are having any second thoughts about the process or the expense however, please read through the following. It should help you make a decision about your estate planning.
People will justify not having a will by claiming that they don’t really have anything or that everyone already knows what goes where, so why bother with the expense of a will?
People cannot use the excuse of cost or legal complexity to justify not making a will. Some states allow for handwritten wills -- no lawyer is necessary. I have never seen one that is valid though. The sad part is that they person did not know their handwritten will was invalid until it was too late to change it.
Some people may question the need for a Will and instead prefer to rely upon the rules of intestate succession to dispose of their estates. Intestacy is a statutory method of distributing an estate in the event that someone dies without a valid Will.
If you die without a Will, the process of intestate administration is generally more complex. The statutory provisions do not take into account any particular wishes or circumstances of the person who has passed. And it will almost always cost the family more, much more, if you die without a will than with a will in place. And if all of the relatives live out of state, they can’t serve as the Administrator of your will, even if they want to. A County Administrator
Some reasons why a will is important:
If you have a will, you can designate who will act as executor of your estate in probate.
If you have a will, you can specify that your executor serves without necessity of a bond.
If you have a will, you can provide for the independent administration of your estate. That means your executor does not have to get court approval for what is done during the administration of your estate.
If you have a will, you can make specific bequests of items of your property to certain individuals.
If you have a will, you can name the guardians of your minor children in case of the death of you and your spouse.
If you have a will, by using a trust, you can delay receipt of part or all of your property until the heir reaches a certain age.
If you have a will, you can leave property to a charity.
If you have a will, you can leave property to people who are not your immediate relatives.
If you have a will, you control who gets what.
If you have a will, your estate can avoid a costly proceeding to determine heirship. That is a probate proceeding where, besides paying the probate lawyer, the estate has to pay a lawyer for the "unknown heirs."
If you have a will, you can make it "self-proving." With a self-proven will, it is not necessary to produce a witness in court to prove the will was executed with the requisite formalities. This may be important if the witnesses to the will are deceased or cannot be found at the time of probate.
If you have a will, it can provide for the transfer of titled property, such as real estate, so the chain of title is not clouded.
At the same time you have a will done, you can also request that the lawyer prepare a living will and a medical power of attorney to govern your medical care should you be in a coma or otherwise unable to express your wishes to the doctors.
Although having a will is important for everyone of adult age, it is particularly helpful for unmarried people. Without a will, survivors must struggle to decide:
» who is in charge of making decisions for the funeral,
» what type of funeral arrangements should be made,
» whether to sell personal possessions,
» what portion of the estate should be given to surviving relatives.
So what are you waiting for?
AARP accepts everyone who is 50 years of age and older, so if you fall into this category, please read on.
Once your children are grown and gone, your financial obligations change dramatically. Your focus tends to shift from raising kids to paying for your retirement. While many people spend many hours considering their retirement savings and income streams, relatively few people consider their long-term care needs. As an Elder law attorney, my focus is on long-term care. I leave retirement savings to the financial planning profession. It takes both to have a comprehensive plan.
Long-term care is a reality for over 50% of seniors in the U.S.
There are only three (3) ways to pay for long-term care in America
1. Out of your pocket and the pockets of your relatives;
2. From a long-term care policy that you own;
If you can afford $5,000 per month from now on out, read no further. You are set.
However, if you foresee your life savings running out before your long-term care needs run out, you might benefit from thinking through your options. One option is to purchase long-term care insurance IF you can afford it and IF you can still qualify. If you can’t qualify or can’t afford it, your only other option is to consider Medicaid as your provider of long-term care once your money has run out.
Let’s talk a little about Medicaid.
Medicaid is a joint Federal/State program that provides a wide range of benefits to the sick, the poor and the aged. For our purpose though, we will consider only what is known as “Institutional Medicaid”, that is, the benefits available to anyone needing long-term care.
Medicaid is administered by each state differently, so don’t assume your friend in Florida Alabama
Medicaid is a “needs-based” program, meaning that you must meet their requirements in order to receive benefits. However, if you meet their requirements, you may have all of your nursing home expenses paid for by Medicaid. This means that your medical expenses, housing expenses and food are paid for by Medicaid, so it is a valuable benefit, if you can qualify.
Federal law prohibits nursing homes from providing a different level of service to Medicaid residents than to private pay residents, so don’t assume that a Medicaid recipient will receive sub-standard care. The only person in the nursing home who knows who is paying for your care is the people in the billing office, not the doctor, the nurses, the therapists or the guy delivering food everyday. You will get the same level of care regardless of who is paying for it.
Who Needs Medicaid?
The most frequent situation we see is when one spouse develops a condition such as dementia that requires them to be under constant care and the other spouse, due to either her/his own health issues or time constraints, cannot provide the care needed. The spouse with Alzheimer’s disease needs more care than the healthy spouse can deliver, so some sort of community or facility is needed. It is important to note that mere dementia without other medical issues will not qualify for Medicaid, but there are normally other health issues that arise during this time that will allow him or her to qualify, so this isn’t normally a problem.
Medicaid qualification is difficult, time-consuming and fraught with expensive mistakes, so if you think Medicaid might be in your future, planning now might save you thousands of dollars later. Ask about it when we meet.
Generally speaking, all adults are considered to be responsible for themselves and their actions. When a person loses the ability to care for themselves through disease, injury or otherwise, they often need someone else to step in and provide care and supervision. For example, suppose your parent develops dementia and can no longer remember how to perform tasks like driving, taking medications, cooking safely and so on. In that situation, the Probate Court can appoint another responsible adult to serve as a Guardian of the person (who is called the Protected Party or Protected Person).
Normally a family member will serve as the Guardian, and will have a wide range of responsibilities over the Protected Person. Think of the Guardian as someone who steps in as a parent to perform parental tasks, even if they are years younger than the Protected Person. The Guardian is responsible for virtually every aspect of the Protected Person’s needs except for their financial needs. A Guardian does not manage the money of the Protected Person. This is an important detail that bears repeating- the Guardian does not and is not empowered to manage any monetary aspect of the Protected Person’s life. That aspect is controlled by the Conservator.
A Conservator is a person who has been appointed by the Probate Court to manage the financial affairs of the Protected Person. Their job is to serve as a bookkeeper, and they must keep careful records of all income and expense of the Protected Person, because the Probate Court will expect to see their records on a regular basis. Suppose that your adult son has had a terrible accident and is receiving proceeds from a lawsuit. Even though you are his parent, you are not automatically entitled to manage his money. You must be appointed by the Court first.
Since a Conservator has a higher degree of responsibility than a Guardian, the Court requires the Conservator to be bondable, which means that an insurance company writes a policy that guarantees the strict performance of your financial duties. If you steal or misappropriate the Protected Person’s money, the insurance company has to pay the court and then you must deal with the insurance company. This is not an ideal situation to find yourself in, so it should be avoided at all costs.
Children can also require the appointment of Guardians and Conservators, and although the details are slightly different, the duties of the Guardian and Conservator are the same. Think of the Guardian as the Mother who provides the love and support and the Conservator as the Father who provides the financial support. Even though this is an outdated image, it might help you to remember the difference in duties.
If your family member ever needs someone else to care for them or manage their money, you should consult with an attorney who practices in the Probate area of the law. Your local bar association can give you names and numbers of who to call.
In a few months we will celebrate the 40th anniversary of what is perhaps mankind’s greatest single achievement- the Apollo moon landing. Some of us who are old enough to have seen it “live” will remember the grainy black and white images with the hushed voices of the newsmen (they didn’t have newswomen back then) describing the scene, and then silence and then Neil Armstrong’s voice coming from ¼ million miles away, “One small step for man- one giant leap for mankind.”
Reporters later asked him what he thought about as he sat atop the Saturn V rocket, waiting for liftoff… In the nonchalant manner of most pilots, he said “I realized that I was sitting on a million pounds of high explosive, timed to go off at precise intervals and all of it was built by the lowest government bidder!” He knew that if any problems developed, no one would know until it was too late to fix them. With the low bidder he got a great price but at what cost?
I am no astronaut and I don’t even play one on TV. I am an attorney who works with families going through Probate court, the court that handles estates of those who have died. Too often I see situations where someone has gotten a great price on a will from a website or an office supply store and that bargain-priced will is now costing the family time, money and heartache. It was cheap but no one anticipated the problems it would create. Just like the lowest bidder, the price was great but at what cost?
Another situation I see is when a person has died and never bothered with having a will at all. They assumed that they didn’t have anything, or that everyone would get along and know what each person wanted, or that banks and financial institutions would simply release accounts to the spouse or next-of-kin without needing anything more than a simple request. They might have even assumed that paying for a will was a luxury that they could do without, a needless expense, a waste of money.
Without exception, dying without a will is more expensive than dying with a will in place. It costs more to probate an estate without a will, it takes longer, it requires a bond to be purchased and it requires frequent hearings in the probate court, each one also requiring the services of an attorney. All of this can be avoided by having a will in place. Without a will no one will ever know your true intentions. You saved some money but at what cost?
So why put your loved ones through needless expense, delay and heartache? It isn’t expensive to set up your plan. It will save your estate more than it will cost. It will make your final affairs run smoothly. It will give you and your family peace of mind. And that is what estate planning is all about- peace of mind.
-©2009, Nolan Elder Law
Did you know that your child is or may be entitled to valuable benefits once he or she reaches adulthood? Social Security and Medicaid are the two most important benefits. If your child has a continuing need for medical treatment and/or housing, over their lifetimes Social Security and Medicaid might spend literally millions of dollars.
It therefore pays to protect these benefits, because if they aren’t paying, you will.
It used to be that folks worried about what would happen to their money and their stuff when they died. Those were the good old days. Now the big worry seems to be, “what will happen to my money and my stuff if I live too long?” More specifically, “what will happen to my money and my stuff if I ever have to go into a nursing home?”
While I don’t recommend worry as a means of solving the problem (it has never worked for me), I do encourage folks to gather information and ask questions. Let me share with you what I know about estate planning and asset protection strategies. If you have any questions after reading through this, you can call me at anytime for a free consultation on your specific situation.
Here are some questions I regularly hear:
Will I lose my home if I enter a nursing home?
Will my spouse have to go without if I enter a nursing home?
What will happen to me or to us once our money runs out?
Can anyone force me to have to go into a nursing home?
There are three ways you can pay for a nursing home stay. One is called Private Pay, meaning you pay for it out of your pocket. The second is through a long-term care insurance policy, and the third is to let the Government pay for your stay either through the VA or through Medicaid. If you are a veteran, there are fantastic veteran’s homes available although there is a waiting list and none are close to Birmingham/Bessemer. If you are not a vet, Medicaid is your only option.
Most of what you read about Medicaid is written by authors in other states, so don’t take their word for how it might work here in Alabama
If you go into a nursing home as a private pay resident or under a long-term care policy, you don’t have to sell your home, you don’t have to do anything but pay your bill every month. It is only when you need Medicaid that you have to worry about your home.
The reality is that most people, if they live long enough, will ultimately have to rely on Medicaid for their long-term care. Once your money runs out, once your long-term care policy limits are reached, you will have no other option than to apply for Medicaid. So it makes sense to plan ahead. Why risk your home or your spouse’s well-being? Planning ahead is smart. You know, it wasn’t raining when Noah built the Ark.
Who hasn’t been to a specialist for a medical problem? We have all been to ear, nose and throat docs, orthopedic docs, dermatologists, cardiologists and a host of other specialists.
People go to specialists for a reason- Specialists limit their knowledge to one or only a few areas, thereby giving their client or patient a higher level of care than might be possible from a generalist.
As in medicine, the law has specialties as well. While attorneys cannot generally claim they are “specialists” in many areas of practice, they can say that they limit their practice to one or a few chosen areas of the law. In this manner these attorneys are able to deliver a high level of legal expertise without having to “do some research and get back to you” as is the case with some general practitioners.
One area of the law that has been gaining in popularity is Elder Law. With so many Americans living into their 80s and 90s, the need for attorneys knowledgeable in elder law has grown rapidly. If you ask the average senior to define elder law though, you will no doubt get a puzzled look. It is possible you might get a similar answer when asking the average attorney the same question.
What exactly is “elder law”?
Most areas of the law are defined by the type of work being done. For example, divorce law, criminal defense, bankruptcy, Social Security disability, real estate, immigration, personal injury- all practice areas and all defined by the type of work.
Elder law by contrast is not defined by the type of work being done but by the client who is being served. A senior might have legal needs in various areas of the law, including wills and trusts, probate, guardianship, Medicaid, Veteran’s benefits and taxation. Rather than having to visit a handful of different lawyers, the senior can deal with all of these issues with one attorney, the elder law attorney.
Think about the average 75 year-old couple. They have led charmed lives in a way. They have lived in the same home for 50 years, so they haven’t met a real estate lawyer. They have never filed for bankruptcy, so they have never met a bankruptcy lawyer. They have never been divorced, never gotten a DUI, never sued anyone or been sued, and like most people, they have put off preparing their wills. They have missed every chance of meeting a lawyer, and now that one of both of them are having health problems, they do not know who to call for help. They might not even know there is such an area of practice called elder law. Indeed, this is the weakness in this area of practice- so few seniors even know this area of practice exists to serve them and their families. Add to this lack of information the sense among some seniors that they are too proud to accept assistance from others and you can see where this will lead.
What types of legal work falls under the umbrella of elder law?
The most common need we see has to do with nursing home issues. Trying to understand the various options with regard to long-term care can be an overwhelming task. Private pay or Medicaid? Long-term care insurance? What about Veteran’s benefits? Does Medicare cover anything? Will I qualify for Medicaid? What is the difference between Medicare and Medicaid? Will I lose the house or family farm if I accept Medicaid? As a Vet or the spouse of a Vet, are there benefits available to us? How do we go about getting them?
Advising the family on home-health care agencies, durable medical agencies, long-term care insurance and annuities, and the various independent living, assisted living and nursing home options is a major part of what we do.
We also assist clients with issues involving dementia and lack of capacity. Who will step in to make decisions for you when you lose your capacity? Will the same person make financial and non-financial decisions for you or do you want to separate the duties?
Helping individuals of all ages with disabilities also falls within the realm of elder law. Special Needs Trusts are specials techniques that allow a disabled individual to continue receiving government benefits like SSI and Medicaid, even if he or she receives an inheritance or a windfall of some sort.
Wills and estate plans are not unique to elder law, but the elder law attorney will know how to incorporate specific provisions in your estate plan that will allow you and your loved ones the most flexibility in helping you if you have a medical crisis and also administering your estate after your death.
And finally, Probate is another area. Helping families navigate the system that takes a person’s will and officially distributes those assets to heirs and beneficiaries is known as probate. Minimizing costs and avoiding family fights are a major part of this work.
So there you have it. Elder law is caring for the senior and his/her family. It is NOT drafting a document or filing a paper or writing a letter to someone. These things may occur but they are incidental to the real work, which is providing our senior citizens with some semblance of respect in their golden years.