Elder Law Update

As an elder law attorney, my greatest sense of accomplishment comes from helping families face the problems and issues associated with aging. Many of these problems, though, go beyond the scope of legal work. The various burdens faced by family caregivers fall into this category.

Caring for an elderly family member is time-consuming, expensive, and can be thankless and frustrating. Individuals suffering from dementia often engage in difficult and irrational behaviors that challenge the will of even the most patient caregiver. In fact, studies have shown that care-giving can directly and negatively impact the caregiver’s physical, mental and emotional health. Fortunately, some companies and non-profit organizations are implementing programs to help with this growing problem.

For example, the National Family Caregiver Support Program (NFCSP) consists of a national “aging network,” 56 state government agencies and 655 Area Agencies on Aging (AAAs), with more than 25,000 local community programs, such as senior centers and Councils on Aging (COAs).

Other resources include:

• AARP Community Forums
• Genworth and AARP’s Joint Caregiving Help and Advice Services
• Local Area Agencies on Aging
• Local Caregiver Support Groups; and
• the Family Caregiver Alliance.

It is difficult to care for others if you do not also care for yourself. If you know any caregivers who could benefit from these resources, I encourage you to pass this along.

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After a brief hiatus (during which your Elder Law Update author was busy having her first child), more great content from the Elder Law Update is on its way!

In the meantime, check out this New York Times article shared by a law school classmate, which reminds us that estate planning goes beyond simply the signing of documents:

There’s More to Estate Planning Than Just the Will.

Navigating the maze of long-term care options can be overwhelming, and the sticker shock when you find out how much care costs? Even more so.  

Many families approach the problem by having an elderly parent or parents come live with them.  But is this the best solution?

According to a recent Forbes article, living with their kids may not be the best option for seniors. The article points out that the number of multi-generational homes is now the highest it’s been since 1950.  This is not a huge surprise, as we know that the elderly population is growing. But apparently, a study sponsored by the National Institute on Aging and Gallup, found that seniors living with their kids reported less happiness and more stress, worry, and anger.

In my experience, I have seen the toll that care-giving can take on spouses and adult children, too.  The stress, anxiety and heartache can be much more pronounced if the elderly family member suffers from dementia. Dealing with dementia patients requires a special set of skills and the right temperament in the caregiver. For many, these skills are difficult to understand and apply. Nevertheless, more elderly receive care from family members than from paid sources. 

Another Forbes article provides some advice on multi-generational living arrangements. Top of the list? Maintain separate living spaces. On the other hand, when dealing with dementia it is most helpful to educate yourself on care giving skills.  Two of the best resources I know of include Teepa Snow, an occupational therapist and expert in dementia care-giving, and Nancy Kriseman, a geriatric consultant offering individual counseling as well as training through educational workshops and webinars. Nancy’s book, The Mindful Caregiver, is also available this month and highlights several approaches to handling the “care-giving journey”.

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As an elder law practitioner, much of my work involves Medicaid and VA planning for long-term care (that is, care in nursing home, assisted facility, or care for seniors at home).  These complex and highly technical areas of the law are difficult to learn, and require a solid understanding of federal law and regulations, state law and regulations, and local rules and practices.

For the unwary consumer, finding reliable information about long-term care planning is even more difficult. A google search of Medicaid or VA will result in millions of hits, but finding the answer to your particular questions, and the rules that apply to your situation and your locality, will be difficult to come by. In addition, the rules related to public benefits planning often change over time, as do practice methods.  You might find a spot-on answer to your Medicaid question from a 2004 post, not realizing that the law changed drastically in 2005.

Other people get advice from friends, who may have had some dealings with these programs themselves. I have had clients make some bad moves based on advice from family and friends. There are also an increasing number of organizations unrelated to the practice of law giving VA and Medicaid planning advice.  Not only are such organizations likely breaking the law by engaging in the unauthorized practice of law, I have seen first hand advice from such organizations that is either ill-advised or completely wrong.

Another increasing trend in VA planning are organizations that promise to do your planning for free – if you transfer the potential applicant’s funds to them for management. Whether these organizations manage that money properly or not, and whether their planning recommendations are well-advised, I do not know. But the planning is not free because they will earn money in fees gleaned from managing the applicant’s money.

If you are at all considering doing any VA or Medicaid planning, engage an elder law attorney proficient in these areas. The rules are highly technical and ever-changing.  Competency is a must, as irreversible planning mistakes are commonplace. One way to find a competent elder law attorney is to search the database at NAELA.ORG, the website for the National Academy of Elder Law Attorneys.  You might want to hire an attorney who is a “Certified Elder Law Attorney” or “CELA”, which means the attorney has practiced elder law for at least five years, passed a competency examination, and submitted references from other elder law attorneys. That being said, I know many excellent elder law attorneys in the metro Atlanta area who have not yet reached this milestone and are more than competent.

Finally, remember that elder law attorneys are not all the same. Among this group, you may find vast differences in planning approaches, the way fees are structured, and total fees for planning services.  By all means, do your research and find the attorney that you are most comfortable with and who best fits your situation.

Good luck!

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Happy New Year from the Elder Law Update!

I figured the first post of 2014 (can you believe it is 2014?!) should be related to changes we will be seeing in the New Year.

January 1, 2014 marked the implementation of the most significant parts of the Patient Protection and Affordable Care Act (often called “Obamacare”), originally signed into law on March 23, 2010.  Such provisions include guaranteed issue (i.e. you can’t be denied health insurance coverage if you have a pre-existing condition); minimum standards for health insurance policies; an individual mandate requiring every individual to have health insurance; and much more.

While the law does involve Medicare payment system reforms, there was no change to Medicare enrollment or coverage.  This caused some confusion, with seniors (the 65 and older group, generally speaking) wondering whether they needed to do anything differently this year about their Medicare coverage (the answer, of course, is no).  This confusion has opened the door to fraud, as this New York Times articles illustrates:

Con Men Prey on Confusion Over Health Care Act

In one example, marketers are pushing “add-on” policies on seniors, using the guise that the policies are required (which they are not). Some are offering to charge seniors to “navigate” the new insurance marketplace, and others are fooling people into divulging personal and financial information, resulting in identity theft. Medicare fraud is not new, but the Affordable Care Act has provided con artists an easier in, especially when it comes to seniors.

The lesson? Educate yourself and your loved ones about the Act to help you recognize a potential scam – there are many articles and websites available online to walk you through the basics.  Also, never offer personal information to a caller or visitor if you did not initiate the contact. Finally, you might check out this article for more tips:

How to Avoid Obamacare Scams

CAVEAT:  This web site and the information contained herein have been prepared for educational purposes only.  The information on this blog does not constitute legal advice, which would be dependent upon the specific circumstances of a particular case.  In addition, because the law can vary from state to state some information on this site may not be applicable to you.

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