Great Resource from AARP on Preparing to Care for a Loved One

The busy lifestyle of most Americans today — two-earner couples, single-headed households, geographically scattered families — can make caring for an older relative challenging. Whether you are taking parents to a doctor's appointment, helping them pay bills or providing full-time care for them in your home, you likely have questions about how to best fulfill your role as a caregiver.

woman helps with another woman's shopping bags, caregiving resource center AARP
Get advice on how to have difficult conversations about caring for a loved one. — Photo by Getty Images

Prepare to Care: A Resource Guide for Families was developed by AARP to help make the job more manageable. It includes information on how to have vital conversations with older family members, organize important documents, assess your loved one's needs and locate important resources. It provides simple, straightforward information and checklists that help guide family conversations. And it outlines what you need to do — in five simple, easy-to-understand steps — to take care of your loved one in the best possible way.

Step 1: Start the Conversation

Step 2: Form Your Team

Step 3: Make a Plan

Step 4: Find Support

Step 5: Care for Yourself

It's never too early or too late to help your family "Prepare to Care" by downloading this free resource guide (pdf).

Medicare - Providing for End-of-Life "Quality" Care?????

http://mobile.nytimes.com/blogs/opinionator/2015/12/09/imagine-a-medicare-part-q-for-quality-at-the-end-of-life/?emc=edit_ty_20151209&nl=opinion&nlid=48944919&_r=1&referer

Early-Onset Alzheimer's Disease - One Man's Journey

In recognition of this year's Alzheimer’s Walk, I encourage each of you to take a minute to reflect on the impact that Alzheimer’s has on families every day. The beauty of the work we do helps these families through one of the toughest things a family has to go through, losing a family member while they are still here on Earth.  Below you’ll find a link to a local radio production contest. The wining piece was created and produced by Esther Honig, the daughter of one of our clients, Jordan Honig. It is of an interview with her father who has early-onset Alzheimer’s. Take a listen…

http://blogs.kcrw.com/whichwayla/2015/08/announcing-the-winners-of-kcrws-2015-radio-race

Maureen McHugh, JD

DESIGNATED HEALTHCARE DECISION MAKER ACT

Introduction

A Designated Healthcare Decision Maker is an individual authorized by law to make healthcare decisions on behalf of an incapacitated patient that does not have an Attorney-in-Fact for healthcare decisions.

Missouri is 1 of 6 states that does not have a Healthcare Decision Maker Law.

When a medical situation is urgent, the delay in obtaining a court-ordered guardianship may jeopardize the patient's health and place large financial burdens on the family.

There exists proposed legislation to amend chapter 404, RSMo, by adding thereto 11 new sections relating to Designated Healthcare Decision-Maker’s authority for medical treatment of an incapacitated patient.

A healthcare provider or healthcare facility may rely in good faith upon the healthcare decisions made for an incapacitated patient by a Designated Healthcare Decision Maker, provided two licensed physicians determine that the patient is incapacitated and does not have:

A guardian with medical decision-making authority appointed in accordance with section 475.010 et seq.;

An attorney in fact appointed in a durable power of attorney for healthcare; or

Any other known person with the legal authority to make healthcare decisions for the incapacitated patient.

If a patient is unable to consent, decisions concerning the patient's healthcare may be made by the following competent persons in the following order of priority:

Spouse

Adult child

Parent

Adult sibling

Grandparent or adult grandchild

Niece, nephew, or next nearest blood relative

A nonrelative who is reasonably believed by the physician to have a personal relationship with the patient and is familiar with the patient’s personal values; or a person designated unanimously by the persons listed above who are involved in the patient’s care.

Priority of a Healthcare Decision Maker is not given if:

The healthcare provider or healthcare facility has reasonable cause to make a report of abuse or neglect against an individual for treatment of the incapacitated patient, then that individual will not be given authority or priority to make any healthcare decisions for the patient.

The persons of equal priority as listed above do not unanimously agree with regard to the healthcare to be provided to the patient, they may file a petition seeking the appointment of a temporary or permanent guardian for the incapacitated patient.

The healthcare provider or healthcare facility has made reasonable attempts to contact the designated healthcare decision-maker using known telephone numbers and other contact information and receives no response.

The healthcare provider or healthcare facility for the incapacitated patient has knowledge that before becoming unable to consent, the patient did not want the authorized person involved in decisions concerning the patient's care.

The Designated Healthcare Decision Maker cannot override the best interests of the incapacitated patient.

Any healthcare services that the patient has unambiguously, without contradiction or change of instruction, expressed to their healthcare provider when the patient had capacity shall be honored.

No Designated Healthcare Decision Maker may, with the intent of causing the death of the patient, authorize the withdrawal of nutrition or hydration which the patient may ingest through natural means.

Artificially supplied nutrition and hydration may be withheld or withdrawn during the pendency of a guardianship proceeding only if the patient’s physician and a second licensed physician certify that the patient cannot tolerate it.

The Designated Healthcare Decision Maker’s authority is not absolute.

Nothing within the proposed legislation permits any affirmative or deliberate act to end the patient’s life.

The rights of the Designated Healthcare Decision Maker end upon the physician’s certification that the patient is no longer incapacitated.

No designated healthcare decision-maker may, with the intent of causing the death of the patient, authorize the withdrawal of nutrition or hydration which the patient may ingest through natural means.

The ABLE Act - Read the details here...

Achieving a Better Life Experience (ABLE) Act

What is the Able Act?

Living with a disability can be costly with constant out-of-pocket expenses to pay for care. Recently, President Obama signed into law the Achieving Better Life Experience (ABLE) Act. The ABLE Act allows people with disabilities and their family the ability to create a tax-exempt savings account that can be used for improving one’s health, independence, and quality of living.

How does it work?

Individuals with disabilities depend on a variety of publically funded programs (Medicaid, SSI, SNAP, etc.) to provide financial assistance with everyday needs. Eligibility for these benefits varies from state to state, but generally the individual would need to have $2,000 or less in assets, or “countable funds”, in order to qualify. With the Achieving a Better Life Experience Act, eligible individuals are able to create an ABLE account without fear of damaging their eligibility for programs like SSI and Medicaid.

Who can open an account?

If you have a significant disability with an age of onset of 26 years old or younger and are currently receiving SSI/Medicaid benefits- you are automatically eligible to create an ABLE account. If you are not a recipient of SSI/Medicaid, but still meet the age of onset disability requirement, you may be eligible to open an ABLE account if you meet the SSI requirements regarding significant functional limitations. Individuals over the age of 26 are still eligible for an ABLE account, but must have the documentation of disability that indicates an age of onset before the age of 26.

What are the limitations?

There are limitations ton an ABLE account. For example, the total annual contribution by all participating individuals may not exceed $14,000. For individuals with disabilities who are recipients of SSI/Medicaid, the first $100,000 towards your ABLE account would be exempt from the resource limit of $2,000. If the ABLE account exceeds $100,000, you (the beneficiary) would then be suspended from SSI eligibility; however, you would still continue to be eligible for Medicaid. Only one account per individual is allowed.

What expenses are covered?

ABLE accounts cover "qualified disability expenses”, meaning any expense related to helping you manage daily life with a disability. These include: housing, education transportation, employment support, healthcare, support services, and other. Consult your financial planner or attorney to see a full list today.

The Partnership Program - Some Good News!!!

Life is filled with uncertainty, but one thing is certain, people need to know that they will be taken care of when they grow old. As of 2013, the number of persons aged 65 or older rose to 46 million in the United States with statistical promises of doubling by 2050. Seniors have several means at their disposable to help ensure whatever care needs they require in the future are met; unfortunately, the inadvertent consequences arising from an instable care plan may be worse than the idea of not having one at all. As a solution, many states have enacted The Long Term Care Partnership Program; a joint federal-state policy initiative that conjoins the perks of private pay insurance with the regulation of Medicaid. This is good news for taxpayers everywhere.

The latest report from The National Spending for Long-Term Services and Supports offered that Americans financed $219.9 billion dollars towards elderly and disabled care, 62% of which was devoted entirely to Medicaid. The eligibility for Medicaid covered Long-term care can be complicated, and the requirement to deplete assets, or “spend down” can put seniors in an incredibly vulnerable (and emotional) situation. State laws differ about how much income and assets you can keep and still be eligible for Medicaid. (Some assets, such as your home, may not keep you from being eligible for Medicaid.) However, federal law requires your state to recover from your estate the costs of the Medicaid benefits you receive.

Enter the Partnership Program.

Most states allow a dollar-for-dollar asset disregard for claims paid on qualified partnership policies and will not require that the policy holder exhaust the benefits offered under the partnership policy in order to qualify for Medicaid.  Under this program, if additional coverage is needed beyond what is provided by the qualified partnership policy, the policyholder can access Medicaid. Simply put, whatever the policy paid toward care, that amount of hard-earned money will be protected.

In order for a policy to qualify as a partnership policy in Missouri, it must have been issued after August 1, 2008, the policyholder must be a resident in Missouri at the time the coverage became effective, the policy must include inflation protection, and the policy has to meet the definition of a Long Term Care insurance policy as defined in as defined in 7702B(b) of the Internal Revenue Code of 1986. Kansas, also a partnership policy state, requires the policyholder to be a resident of Kansas at the time coverage became effective, the policy must be issued after April 1, 2007, it must include inflation protection, and the policy has to meet the definition of a Long Term Care insurance policy as defined in 7702B(b) of the Internal Revenue Code of 1986.

Prior to 2006, when the Deficit Reduction Act (DRA) was enacted, only four states (CA, CT, IN and NY) adopted a private-public partnership plan to protect the assets of people unable to afford private insurance, yet had too many assets for Medicaid.  In the years since the DRA eased its restrictions, almost every state in the country now has a partnership program.

States like Indiana and New York offer a total asset approach which allows an individual to keep all their assets, not just an amount equivalent to the Partnership policy benefits received. However, for someone to fully qualify for total asset protection their policy must provide a certain amount of benefits.

Some of the benefits of a Partnership Program are:

·      Tax-qualified.

·      The policy must provide inflation protection.

·      Care eligibility does not require depleting or transferring assets.

·      Once private insurance benefits are used, special Medicaid eligibility rules are applied if additional coverage is necessary.

·      Regulated premium rates.

·      States with Partnership Policies tend to have reciprocity.

To locate the state insurance website to determine the rules for each state, go to www.naic.org/state_web_map.htm       

Elder Law Video Series

In this video, we have the chance to hear about one family's story as they navigate the roads with an aging loved one.  As an Elder Law practice, these are the types of scenarios in which our firm can be of service. Please take a look.

https://www.youtube.com/watch?v=e4trmZeYBVE

A Social Security Disability Primer

The Social Security Act provides financial benefits to qualified individuals who have suffered a physical or mental disability. "Disability" is defined as the "inability to engage in any substantially gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months" [42 U.S.C. Sec. 423(d)(1)(A)]. This comment briefly outlines the process of obtaining Social Security disability benefits. Always consult an experienced legal professional in Social Security disability cases.

Successfully proving a disability is the key barrier that claimants face. The U.S. Code states:

"An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work" [42 U.S.C. Sec. 423(d)(2)(A)].

There is a five step process for determining if an individual is "disabled" as defined above: 

1. The claimant must prove that she is not currently engaged in substantial gainful activity.

2. The claimant must prove that she has a severe mental or physical impairment(s) that significantly limits her ability to perform basic work activities.

3. The claimant must meet the definition of "disabled." Disability is presumed if one has certain listed impairments. Otherwise, a residual functional capacity assessment is conducted to determine the claimant's work environment limitations. This concludes with a job exertion category classification.

4. The claimant must prove that her impairment(s) prevent her from performing the physical and mental demands of her previous work.

5. If the claimant has satisfied all previous four steps, then to challenge the disability classification the Social Security Commissioner must prove that the claimant is capable of performing some other substantially gainful work that exists in significant job numbers in the national economy. The claimant may rebut the Commissioner's proof.

Procedurally, a Social Security disability claim process begins with a filing either with an authorized state agency or the Social Security Administration. A claimant may request a reconsideration of a denial of benefits. Denial of benefits may be subsequently appealed to an administrative law judge and beyond that step to the Appeals Council of the Social Security Administration. After these steps, the unsuccessful claimant may appeal to a federal District Court.

This court's review determines if the Commissioner applied the proper legal standard and the Commissioner's decision was supported by substantial evidence. Substantial evidence has been defined to be relevant evidence that a reasonable mind might accept to support a conclusion. The administrative law judge has broad discretion in determining the merits of medical and other testimony. A treating physician's testimony is not necessarily superior to that of a non-examining consultant.

In a January 9 decision, the federal District Court for the Northern District of Illinois, Eastern Division, in a sharply critical opinion, reversed and remanded an Administrative Law Judge's denial of benefits for several reasons including using "boilerplate" language that failed to link conclusions with evidence in the record [Wilcox v. Colvin]. Additionally, the Court criticized the Administrative Law Judge's determination of the claimant's credibility based solely upon medical evidence, the Judge's failure to address limited concentration in the context of an unskilled job, and a failure to adequately address the impact of the claimant's obesity.

The precise amount of benefits that a successful disability claimant receives is calculated with a somewhat complex formula. While private long-term disability insurance benefits typically do not reduce Social Security disability benefits, government disability benefits such as workers' compensation may reduce benefits in some circumstances.

Commentators have noted inconsistencies between Social Security decision makers in our national legal environment. This may be unavoidable, but further emphasizes the disability claimant's frequent need for professional representation throughout the claim process. This brief comment can only provide a brief educational outline of a difficult topic. Consult the Social Security Administration and experienced professionals in specific situations.