Elder Law

Before a Medical Emergency Occurs, Learn About Your Parents’ Aging Strategies

May 9, 2022Filed Under: Elder Law, Estate Planning

In the US, many adult children live far away from their parents. Managing aging parents or in-law medical events can be a serious challenge without proper preparation and understanding of what your parents’ strategy may or may not be, no matter where you live. Do you know what legal documentation your parents have in place regarding their medical care? Do they have advance directives that can help guide your medical decision-making process? Do you and your spouse openly discuss the situations of each other’s parents?

Medical advancements facilitate aging Americans’ longevity even with comorbidities such as high blood pressure, diabetes, kidney disease, atrial fibrillation, and other health issues. Hospitals can typically fix non-life-threatening conditions easily enough, but what happens when a parent is released to return home? Are you prepared? Is there a plan? Many adult children tend to practice avoidance, denial, and wishful thinking when thinking about their aging parents’ behalf in a potential medical crisis. It is advisable to organize and prepare for the changes that inevitably come to your parents’ health.

More than ever, seniors are choosing to live independently and with autonomy about their life decisions. Even if your parents are in a well-run continuing care retirement community, there will come a day when their health will force a change in their lifestyle and living arrangements. Many parents will resist “help,” which they may consider more as interference. Whether they believe they are being a burden to you or decline a geriatric care manager’s services due to “cost” concerns, most older people do not want others interfering in their private affairs.

The goal is to find a way to help while still affording your parents the dignity and respect they want and deserve. To achieve a comprehensive plan on your parents’ behalf, travel to them for an honest discussion. If this is not possible due to COVID-19 restrictions, then virtual meetings are best, followed by phone calls as hearing loss typically makes communicating useful information difficult. Even on a screen, a face-to-face connection allows a parent to read lips, which is a typical strategy for older people experiencing hearing loss.

Review what legal paperwork your parents have and make sure it is in order. Many documents have a signature from many years ago, and things may have changed. If there is no designation of a medical power of attorney, be sure there is a document naming a “personal representative” to address restrictions outlined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This document allows the waiving of privacy concerns that permit access to a parent’s medical information while the parent is in the hospital.

Create an up-to-date list of all your parents’ doctors. The list should include medical contact information and all medicines (prescription or otherwise) that the parents take. If their general physician is not a geriatric specialist, it will help to find them one. Post-hospital fog and newly prescribed medications from an adverse health event can create confusion in an older parent. A geriatric doctor will know to look for and resolve these types of issues. Ask about the parameters for health care intervention, such as dialysis, post-hospital during the time of COVID-19?

Explain to your parents that being released from a hospital for a non-life-threatening, yet serious health episode is usually followed by the need for a care manager, at-home nursing care, or at least companion care. This additional care should not fall to a spouse if the parents live together. A spouse has a unique role to fill as well as personal health challenges with which to contend. Heaping an increased responsibility for spousal health care upon them may be damaging to their health.

Before an unforeseen medical crisis can occur, identify several qualified agencies in your parents’ hometown. Review each agency and candidate carefully. It is easier to integrate a suitable candidate at the outset than having the chaos of retaining and releasing multiple workers. Remember that a candidate who works for one parent may not be another parent’s preference in the future. Maintain a strong relationship with the agency provider. They are an essential resource, and you will probably need them in the future.

Take the time to learn the specifics of your parents’ healthcare and living arrangements. Coordinating your plan of response is contingent upon whether your parents live independently, in assisted living, or in a retirement community. Wherever it is your parents live, their first desire will be to go home after an unexpected hospitalization. The desire to return home is a universal truth. Knowing the agencies that can quickly provide the type of care your parent needs in their home setting will go a long way to a successful transition. The road to recovery may require a few weeks of nurse visits, physical or occupational therapists, or simply companionship. The faster you can meet the need, the easier it will be on your parent.

If a full recovery is not possible, what will be your plan to address the new status of their normal? How much more medical oversight and assistance will they require? Know that in these instances, a parent can quickly spend through Medicare allotments afforded for temporary care. If they do not have long-term care, and many aging Americans do not, you will have to find ways to help them receive the care that they require.

If there are multiple adult children, is there an expectation that all siblings share information and work on the problems at hand, or is one in charge? Is this designation formally documented? Managing sibling relationships is key to avoiding family conflict. Also, understand your parents’ financial arrangements. Most parents will ask about the cost of any new healthcare service being arranged and decline to use it. It is hard for a parent to spend down the money they worked their entire life to amass.

Knowing your parents’ aging strategies will not address every issue you might encounter because they may not have all the necessary decisions and documents in order. You can only work within the authority they choose to provide. As attorneys, we can help identify gaps in their planning and recommend ways to fill those gaps so everyone can have peace of mind. We hope you found this article helpful. If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our Cincinnati office by calling us at 513-771-2444 with any questions.

Identifying Elderly Who Are Being Exploited

April 18, 2022Filed Under: Elder Law, Senior Living

People who believe they are making a charitable donation to help less fortunate people are scammed by scammers who take advantage of their good intentions. Auto call lists that easily identify older victims and the ubiquitous online world of emails, fake mirror websites, disingenuous GoFundMe pages, even postal mail scams can overwhelm an older adult trying to figure out what is real.

While these scams may seem obvious to many people, fraud perpetrators know how to target vulnerable people who are less likely to pick up on the signs of a scam, often becoming victimized. We often warn our elders of financial fraud via unknown callers and the internet reminding them never to give out personal information, and that is important. Sadly, however, most financial exploitations happen through caregivers, family members, friends, or trusted individuals. To best protect an older loved one, it is vital to keep a watchful eye on the signs of financial exploitation, in whatever form.

How to Identify Elderly Most At Risk

The first step is to identify who is most at risk. The National Council on Aging (NCOA) defines elder financial exploitation as “the misuse or withholding of an older adult’s resources by another” and is a form of elder abuse. Those older individuals who are lonely or isolated tend to be more at risk of financial exploitation. Increased risks are also associated with those who have mental or physical disabilities. And for those families with members who have financial or substance abuse issues, there is an increased risk of financial exploitation of their elders. Couple any of the above situations with an older individual who lacks control or familiarity with their finances, and the consequences may be disastrous.

There are warning signs of financial exploitation to be mindful of, including:

Money management changes – This can be a change in the individuals tasked with financial oversight (professional or personal), new routine bank account withdrawals, or significant changes in account balances. Look for unexpected opening or closing accounts, changes in spending habits, disconnected utilities, or missed bill payments.
Changes in individual associations – Any new “friend” that may try to isolate your loved one is a likely sign of undue influence, control, or manipulation. Any recent individual (professional or personal) who tries to withhold income or assets is very suspect. Additionally, be wary of those who pressure a loved one to give gifts such as cash, property, or making personal loans without documentation or belief that the person will repay the loan under the terms and conditions.
Changes in legal documents – Newly drafted legal documents that seem unusual or have forged signatures are apparent signs of problems. Also, look for alterations in existing documents, pre-signed withdrawal slips or checks, and transfers made without the knowledge or understanding of the older person.
Changes in the older individual’s behavior – If your loved one exhibits fear, shame, humiliation, confusion about their finances, or an unwillingness to discuss money or get counsel, these are indications they need help now. These feelings and introversion may be due to deteriorating or untreated health or medical conditions, making them vulnerable to exploitation. It may also be a sign of ongoing financial exploitation. Any indicators of other abuse, such as physical or emotional neglect or abuse, even missing property, are warning signs that financial exploitation is occurring.

What can you do if you suspect or know that your elder loved one is experiencing financial exploitation or abuse?

Immediately report your suspicions or findings to law enforcement, adult protective services, their and your attorney, other responsible fiduciaries who are involved, and local elder agencies. It is helpful beyond measure to report to as many agencies and responsible, involved parties as possible. Quick action and reporting increase the chance to recover assets. Also, protect your elder loved one from the abuser. Create space between the parties. Do not permit contact to ensure the victim’s safety.

Many older individuals shy from reporting financial exploitation due to fear of retaliation, losing independence, or the embarrassment suffered for being duped. Other victims may be mentally or physically unable to recognize the abuse or take too long to recognize what was happening to stop it. And sometimes, seemingly radical changes in financial accounts are for legitimate reasons such as estate planning or preparing to enter a nursing home, so be sure of your suspicions.

If you find actual financial exploitation or abuse, contacting proper authorities is the key to the best outcomes. Professional service people follow processes to protect the victim’s person and then seek to recover missing assets. Elder financial abuse can create heartbreaking situations, leaving the victims destitute. Learn about elder financial abuse to protect your loved ones from the scams at large and the family or other close individuals who might seek to take advantage of them. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

2022: Long-Term Care Options

April 11, 2022Filed Under: Elder Law, Long Term Care, Medicaid Planning

At the beginning of a new year, we all take stock in our lives and make health care plans. Americans continue responding to the ever-present threat of COVID-19 in its many iterations, and we are identifying that which is most important in our lives to preserve our health and financial future best.

For many, the mere mention of long-term care health insurance congers up images of twilight years seemingly far removed from our daily lives. However, the reality is that you may find yourself in need of long-term care due to a sudden disease or illness or as the result of an accident. The US Department of Health and Human Services statistics currently show that about seventy percent of individuals over the age of 65 will require some long-term care during their lives. Genworth’s latest statistics show that a full thirty-seven percent of these long-term care recipients are, in fact, under sixty-five years of age.

Regardless of your age or cause, when long-term care becomes a requirement, it is important to know and plan for your options regarding funding the care you need, where and how you prefer to receive it. Your planning today can make a huge difference in your financial solvency and those caregivers (mostly family) who participate in the financial burden of your care.

Naturally, the best scenario is having prepared for the future by having healthy balances saved in your retirement programs and health savings accounts. If the funding is available to cover long-term care costs for yourself or a loved one, it is prudent to do so. Perhaps you can only make part of the funding happen, in which case you may have to ask loved ones for help. They may have the financial where with all to finish covering premium costs. Paying some out-of-pocket for an aging parent early on means less of a toll emotionally, physically, and financially, should a family member have to assume becoming a full-time caregiver.

The IRS considers long-term care insurance as a medical expense. As long as the policy is qualified, it is deductible. IRS rules state the policy must have been issued on or before January 1, 1997, and adhere to certain requirements. Policies purchased before this date may qualify to become grandfathered if the state’s insurance commissioner approves the selling of the policy. The IRS rules from 2021 to 2022 are little changed, most notably in age categories from sixty to seventy years old the IRS reduced the deduction by ten dollars.

Note these tax deductions are, for the most part, not available in hybrid policies. These policies combine life insurance and annuity policies with a long-term care benefit. Hybrid policies are becoming particularly popular because if long-term care is not a requirement, the individual’s heirs may receive a death benefit. Your medical expenses need not exceed a certain percentage of your income to be tax-deductible. As long as you earn a profit, you may take the amount of your long-term care insurance as a deductible.

Public programs are becoming more heavily leveraged for lower-income individuals to plan for long-term care services. There is nothing wrong with taking advantage of these programs; however, most Americans do not understand the differences between Medicare and Medicaid, what and who they fund, and for how long. The answers are complex as there are physical and financial thresholds to qualify for benefits, and these may vary from state to state. Here is a general overview of qualifications and limitations in coverage and choices of care facilities.

Sometimes referred to as Medicaid crisis planning, an elder law attorney can guide you through the process of sheltering some of your assets. Medicaid is a federal/state program helping low-income seniors with limited income and assets afford healthcare and long-term care. Many seniors believe their only option to qualify for the program is to “spend down” their assets. While this is true in some cases, proactive Medicaid planning can protect a substantial portion of your assets if done correctly.

The program’s eligibility rules are complicated, as is the application process, so it is best to navigate the process with a specialized Medicaid planning elder law attorney well before you need to tap the benefits. Always seek professional legal advice when creating your long-term care strategy using Medicaid. Applications are rarely successful as a do-it-yourself project, and mistakes can have devastating long-term consequences on a family and their finances.

Options for long-term care exist; however, finding the best solution for your financial circumstances is complex. As 2022 is upon us, it behooves us all to look to the future of our healthcare and prioritize proactive planning, ensuring there will be a plan in place when we encounter the likelihood of a long-term care requirement. We hope you found this article helpful. If you have questions or would like to discuss your personal situation, please don’t hesitate to contact us at 513-771-2444.

What It Means to Be a “Fiduciary”

February 14, 2022Filed Under: Elder Law, Estate Planning

A family member or friend may need you to be their power of attorney. Your person may be planning for when they might become unable to take care of their affairs. For example, they might become disabled or incapacitated, and they would need a trusted person to step in and manage for them. This is also necessary if the person is writing a will, and his or her estate must go through the probate process.

If you are named as a guardian, executor of a person’s will, trustee, or power of attorney, the law calls you a “fiduciary.” You must act in the best interests of the person who has named you – “selflessly,” in other words. You must act loyally and in good faith.

You are not allowed to use the person’s property for your own profit. You cannot give gifts to yourself or others if the person has not authorized you to do that. You cannot mingle your person’s property with your own. If you spend the person’s money, you must carefully document the amount you spend and for what purpose.

What is a Fiduciary Relationship?

The “fiduciary” relationship imposes the highest duty in law. If you violate that duty, you may become personally liable.

Or, if you are the one who is thinking about whom you would like to name as your power of attorney (or the like), you must be sure you trust that person absolutely.

A recent New Jersey probate case shows what can go wrong. Mother Christine named Patricia, one of her daughters, to be the executor of Christine’s will. On Christine’s death, her other daughter, Diane, received a check from Christine’s estate for $10,000.00 – yet Christine’s house had sold for nearly $230,000.00.

The judge ordered Patricia to produce an “accounting” of where all that money had gone. An accounting is an inventory of estate assets and a record of all income and expenses. Patricia would not do so. Examination of the estate’s inheritance tax return revealed that despite a gross estate value of $319,368.00, the estate bank account contained only $6,886.00.

Patricia had spent $40,000.00 on what she claimed were home repair expenses, but she could produce no building permits. She had also given herself $110,000.00 as “fees” for her executor duties, plus a “gift” to herself of $27,000.00. No wonder she pled the Fifth Amendment.

The judge entered a judgment against her of $200,422.00. The judgment was affirmed on appeal, but with the requirement that the trial judge calculates the damages more specifically.

The case is In re Cenaffra, and can be found here:

https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2020/a5731-17.html

Most people are not like Patricia. If you are named as guardian, power of attorney, or executor, follow a few simple principles. Make sure you don’t personally benefit from what you do with the other person’s property. You might be compensated fairly for your work, but refrain from doing anything that might look like a conflict of interest. If there are other beneficiaries waiting to receive their inheritances, be transparent. Keep the beneficiaries informed. Write down why you acted as you did, at the time you acted. Document everything. Keep receipts.

If you have questions or would like to discuss your particular situation, please don’t hesitate to reach out. We help people determine who should act in their best interests, and we can help those who are already named. If you’d like to discuss your particular situation, please contact our Cincinnati office by calling us at 513-771-2444. We welcome the opportunity to speak to you.