| Davis O'Sullivan
& Priest LLC
129 Church Street
New Haven, CT
| PLANNING FOR THE ELDERLY(see disclaimer)
Last updated (somewhat) June 27, 2015
- Jump HERE to the "consumer" links, HERE for the lawyers' links page, HERE for a list of ARTICLES referred to on this page. Skip past the following "alert" HERE OR go further down HERE to get to my pre-blog "BLOG" (a/k/a "Various Notes and Announcements)
- CLICK for slide-show on Medicaid
eligibility (NOT NECESSARILY CURRENT -- CHECK THE "LAST UPDATED" DATE)
DEFICIT REDUCTION ACT eff 2/8/06: ANY TRANSFER OF ANY SIZE MADE WITHIN FIVE YEARS OF APPLYING FOR MEDICAID MAY CAUSE LOSS OF ELIGIBILITY. (Or it may not -- consult an attorney -- the point, is BE CAREFUL.) The new law applies to transfers on/after 2/8/06 as follows:
AND: NURSING HOME COLLECTION ATTORNEYS ARE OUT TO GET ANYONE WITH A DEEP POCKET. In numerous lawsuits, nursing homes have sued family members who sign admissions agreements as "Responsible Party" or who otherwise assume responsibility for ensuring that the bill is paid. Things to know: (1) A new law (2013) gives the nursing home the explicit right, by statute ,to sue someone who receivd a gift within 2 years prior to the resident applying for Medicaid, if the gift caused ineligibility for Medicaid; (2) A recent case says the nursing home cannot sue a spouse for liability JUST BECAUSE (s)he is the spouse. (3) A less recent case says the nursing home CAN sue a "responsible party" who has agreed to use funds just to pay the nursing home bill, even if the funds were used to benefit the resident; other cases suggest that if the "responsible party" also received a gift from the resident, (s)he will have a tough time fighting liability. (4) ALWAYS CONSULT AN ATTORNEY WHEN A NURSING HOME ASKS ANYONE TO PAY OTHER THAN THE RESIDENT. There are many defenses, counter-arguments, and sometimes it is even possible to get Medicaid for the person despite a denial.
THIRD: DON'T PANIC - CONSULT AN ELDER LAW ATTORNEY! The above statements are the basics -- the law. How the law applies to YOUR set of facts is why you hire an attorney, and not a "Medicaid specialist." There are exceptions - exclusions - strategies. Sometimes there may even be planning options.
Three questions --
What are the
Financial planning with reverse mortgages and home equity
loans, annuities and retirement plans, earnings in compliance with
Social Security laws, and careful projections in spending principal, to
enable an elderly person to remain at home or to choose wisely in
selecting an appropriate assisted living facility or other living
Selecting appropriate long-term care insurance and "Medigap" supplemental insurance, and taking advantage of many helpful government programs including Medicare, Medicaid, the Connecticut Home Care Program for Elders, "QMB" and the Medicare Part D Low-Income Subsidy, to ensure continued care at home as long as possible, or if necessary, in an institutional setting.
Transfers of property, by Will or if
appropriate during life, whether to minimize death and income taxes, or
to prepare for Title 19 (Medicaid) eligibility if necessary, but
keeping your needs and wishes as the guiding principle.
What kind of
planning is involved, and how can a lawyer help?
A typical plan might require a Will
and/or living trust agreement,
durable powers of attorney, living will and related
documents, and designations of conservator in the event of future
incapacity. The plan might also require evaluating the effect on Title
19 eligibility of planned gifts to family members, rights under Social
Security or Medicare, or might involve real estate
transfers. The plan is for YOU, THE ELDERLY PERSON, and
what YOU want to do. This may or may
not mean "protecting your assets" for your heirs, as there is no
free lunch, magic bullet, or magic trust. Read my article.
If special care is needed, you may
also require advice about eligibility for programs that provide
coverage for nursing home care or for significant care at home,
or help determining whether or not your resources are sufficient to
support residence in an assisted living facility.
Families with relatives in institutional
facilities may require advice on the best way to ensure good care for
their loved ones, or advice on enforcing their legal rights.
When planning has not been done, families
may need assistance with techniques such as conservatorship if necessary to ensure an older
And after the planning is done (or if it wasn't done) -- families often need help with an application for Medicaid once an individual is in a nursing home or requiring long-term care at home.
is vital to consult an
attorney when a married couple is concerned that loss of
income or assets to pay for one spouse's needs, may impact the quality
of life of the spouse at home.
A "senior" under 65? You may be in
luck with Obamacare! Expanded Medicaid (in
Connecticut called Husky D) is available to those age 19-65 not on
Medicare with "modified adjusted gross income" ("MAGI") of under
138% (net) of poverty. It even covers nursing home
care! It has NO ASSET TEST! If you are disabled but not yet on
Medicare, you have two years of Husky D to look forward to if your MAGI
is low. Spend your savings and get free health insurance. And don't
panic if you need nursing home care. Check out www.huskyhealth.com and look for Husky D.
Great New QMB rules (CT taking advantage of an option in the Affordable Care Act a/k/a Obamacare)!! "QMB" is a benefit for low-income individuals who receive Medicare. An individual is eligible for Medicare at 65 or after 24 months of eligibility for Social Security Disability Income (SSDI) (or sooner, with some disabilities). However, Medicare has many gaps and deductibles and the "Part B" (doctor) coverage costs $104.50/month or more -- a lot more if someone did not enroll at the usual time. QMB takes care of this. QMB is a "Medicare Savings Plan" that pays the Medicare Part B premium and also pays the copays and deductibles for care from health care providers that participate in Medicaid. Someone eligible for QMB is automatically eligible for the Low-Income Subsidy for Medicare Part D (the prescription drug benefit under Medicare) -- which means no premium is paid for the standard prescription drug plan coverage, copays are small or nonexistent, and the "doughnut hole" in coverage -- where some Medicare Part D members must pay up to $3,000 or more for drugs -- does not exist. The point is that starting October 1, 2009, there is no asset test for QMB (in Connecticut) and no estate recovery -- no obligation to repay benefits -- from the recipient's estate at death. In Connecticut, any single person receiving Medicare, who has income of $2,021.38 for a single person and $2,728.23 for a couple (2014 figures) is eligible. Check for updates on the figures at www.CTElderLaw.org. The point is -- if an individual has Medicare, and lives in the community, (s)he may not need to worry about complying with the strict income and asset limits of the Medicaid program in order to get medical care and almost all prescriptions covered. No more need to worry about the "spend-down" -- no more need to worry about staying under $1,600 per month. You apply for QMB with a super-simple form: click HERE (PDF file, fillable). If you are already on Medicaid and eligible for QMB, your case worker should automatically put you in for QMB. For the list of "benchmark" Part D (prescription) plans, click HERE to get the PDF file. Caution: don't necessarily drop your supplemental insurance if you have it -- doctors CAN discriminate and decide not to accept you if they don't participate in Medicaid or even if they do but don't want to accept what the QMB will pay.
Elder Law Answer Book - NEW EDITION 2009 -- updated annually.
I am proud to be co-author of the Elder Law Answer Book (3nd edition,
2009) (with annual updates) with nationally-recognized author
Robert Fleming. In a straightforward Q&A Format, the Elder
Law Answer Book tackles the many different questions that confront
those who advise the elderly and their families -- from Medicaid to
Veterans Benefits to Wills and Trusts to Retirement Benefits.
While it isn't necessarily intended for the general public, it
should be invaluable to planners, accountants, non-specialists, and
others who assist the elderly. You can order this book from
Wolters Kluwer, Amazon.com, or other booksellers, as well as the annual
updates. A new app (2015) makes this readable on your Ipad.
Interplay of Home Care Program and a Reverse Mortgage. The Connecticut
Home Care Program for Elders can provide much-needed home care services
for those with limited resources, unable to pay for care.
Similarly, the Cash Assistance program can even supplement income for
those with very little means of support. HOWEVER, for those who
aren't married, the State may place a lien on the home. The idea
is that the lien must be repaid when the individual leaves the home for
an eventual permanent stay in a nursing home; or when the individual
dies. The problem is that these programs may not be enough, but
the lien may deny the individual access to equity in the house by way
of a reverse mortgage. That is, the mortgage company will require
that any liens on the home be paid off out of mortgage proceeds at the
time of closing. While the state lien is not repaid until
death/institutionalization, and bears NO interest, the mortgage company
lien accrues interest immediately. SOLUTION? If there is ANY
chance that you would want to access your home's equity to provide for
care beyond what the Home Care Program
will provide, you may wish to secure a reverse mortgage Home Equity
Line of Credit BEFORE you apply for benefits. You do not have to
use up the line, but once the mortgage is in place the state lien
won't prevent you from getting the mortgage. On the other hand,
reverse mortgage fees can be very high and the debt begins accruing
interest immediately. By the way: the "segregated" money from a
reverse mortgage does not count as an asset for Medicaid eligibility --
but that doesn't mean transfers aren't subject to penalty. Read
more in this outline.
Medicaid is a confusing subject. This website
includes a Powerpoint slide-show on "Medicaid
and Long-Term Care in Connecticut" that should get you started in
learning about this difficult topic. THIS SLIDE SHOW MAY NOT BE CURRENT, SO
BE CAREFUL ABOUT THE "LAST REVISED" DATE. Since 4/1/2007
the Department of Social Services has been struggling to implement new
regulations that interpret the Deficit Reduction Act -- with fierce
opposition from CT's elder law attorneys. As of 8/1/2012, there are
still no fully adopted regulations, although the State is enforcing /
living by its "proposed" regs. I'm waiting until the dust
settles. This site also includes 2 articles to explain what assets are "exempt," and what preparations you should make to "spend down"
if you or a loved one (in CT) is inevitably likely to be on Medicaid in
a short period of time. You may also want to read about the
tricky subject of "transfers of assets"
subject to the ALERT above. Please note that if
you are married, (1) the law provides you with additional protections,
but (2) the State of Connecticut is restricting these protections more
every day -- you MUST consult an attorney if you and your spouse
have more than $25,049.80 (2014 figure) in NON-exempt assets or if one
person could not support him/herself on his/her own income alone.
How to Spend Down. When Title 19
(Medicaid) is in the near future (you or a loved one has only enough in
remaining assets to pay for a few months of care in a skilled nursing
facility or at home), it is important to spend those remaining assets
wisely. Title 19 is a safety net and does not address all
your possible needs. See my checklist for, "Getting Ready for Medicaid," for
some ideas about wise and practical ways to use those last dollars to
protect yourself. IF
YOU ARE MARRIED, DO NOT ACT
upon these ideas without consulting an attorney!!!
Attorney: Many people find it useful to have in force a
Durable Power of Attorney giving one or more persons whom you trust,
the power to handle your affairs for you if you are unable to
do so. If you have a valid power of attorney, you may avoid the
need for the appointment of a court-supervised "conservator" if at some
point you become unable to handle your affairs. On the other
hand, the Power of Attorney is a powerful document. You are right
to be cautious about giving another person broad power over your
affairs. Be sure your attorney-in-fact is aware that he or she is
required by law to act for your benefit or otherwise as you
have directed, and that in Connecticut, the probate court has the power
to hold accountable the person named to act for you. Finally,
your Power of Attorney document should reflect your wishes.
Did you know that unless the Power of Attorney expressly authorizes
gifts, even charitable gifts you make ever year, the attorney-in-fact
has no authority to make gifts of your funds? And that giving an
unlimited power to make gifts to him or herself, can cause tax problems
for the attorney-in-fact? You should discuss your power of
attorney with a lawyer. ALSO -- the rules differ state by state - don't
assume your power of attorney will be honored in a different state. For
more information on powers of attorney in Connecticut, you may want to
consult my articles published in www.CTElderLaw.org,
a consumer-oriented website that provides legal information of interest
to elderly Connecticut residents. (To go straight to the part on
Powers of Attorney as I wrote it, updated by Legal Services attorneys,
Connecticut Legal Services has added references to the actual laws on
this as well as making the Q&A easier to navigate, on this page.) An
explanation of HOW IMPORTANT this is to your loved ones can be read HERE.
Plans. Thinking of giving to your
grandchildren? "State-sponsored qualified tuition plans" can
offer tax-free savings with significant control retained by the
donor. However, there are pitfalls you should worry about unless
you are certain to have sufficient private resources to pay for all
your future long-term care needs without recourse to government
benefits. Click here for my article on "Funding
College with Section 529 Plan Gifts: Benefits and Pitfalls."
Planning to Move? You
should know that the laws of our 50 states are enormously different
when it comes to insurance coverage, Medicaid eligibility, the validity
of trusts, and even the meaning of your will. It is vital that
you consult a local attorney after, or even before your move.
Find a local attorney who is a member of the National Academy of Elder Law Attorneys
FOR A LIST OF CONSUMER LINKS FORMERLY ON
THIS PAGE, click HERE.
Other places to write or call: (please give me feedback on this information so I can keep it current)
Connecticut Programs and Information:
Elder Rights/Protective Services. Investigates potential cases of elder abuse, neglect, abandonment or exploitation of persons 60 and over including monitoring and linkage with community based services. 1-888-385-4225 or 1-860-424-5241; after hours/weekends Infoline 800-203-1234.
Connecticut Home Care Program for Elders. Offers home and community based services as an alternative to institutional placement. Program is available to Connecticut residents aged 65 and older who qualify financially and functionally. 1-800-445-5394 or 1-860-424-5181. For eligibility information, see the "Health Care" page of the CTElderLaw.org website, or go directly to the CT Home Care page. The Department of Social Services also has information.
CHOICES, help for Connecticut residents in selecting appropriate "Medigap" or Medicare supplemental insurance: 1-800-994-9422, Connecticut's program for Health Insurance Assistance, outreach, information and Referral Counseling and Eligibility Screening" (affiliated with the Area Agencies on Aging.)
Connecticut Hospice, Inc., 61
Burban Drive, Branford, CT 06405. Tel: (203) 481-6231, Fax:
(203) 483-9539, email: email@example.com.
Connecticut Hospice provides care for those in the terminal stages of
Information on Reverse Mortgages:
http://www.hud.gov/rvrsmort.html - the government's site on reverse mortgages.
The following documents may be somewhat dated, so check the updates.
"Money from Home: A Consumer's Guide to Reverse Mortgage Options." Write to FannieMae, 3900 Wisconsin Avenue NW, Washington, DC 20016-2899.
"Facts for Consumers -- Reverse Mortgages," published by the Federal Trade Commission, Office of Consumer/Business Education, Washington, D.C. 20580.
"Home Made Money," published by AARP, lists key questions to ask, offers less costly alternatives to reverse mortgages, and includes information on obtaining reverse mortgage counseling. The guide can be ordered online or by calling toll free 1-800-424-3410. You can order online by sending email to RMinfo@aarp.org. Ask for publication stock #D12894. Include your name, full postal address, the publication title and stock number. There is also an online version at http://www.aarp.org/revmort, AND you can download -- but it is 2 MB, in Adobe.
"Your New Retirement Nest Egg," by Ken Scholen, available from The National Center for Home Equity Conversion, 7373 147th Street West, Suite 115, Apple Valley, MN 55124.
Help with Medicare and Medigap Insurance
Help with Medicare Issues: Center for Medicare Advocacy, P.O. Box 350, Willimantic, CT 06226. 1-860-456-7790. Free assistance for Connecticut residents in most cases. AN INVALUABLE SOURCE OF HELP WITH THAT IMPOSSIBLE MEDICARE PART D PRESCRIPTION BENEFIT.
Help selecting appropriate "Medigap" or Medicare supplemental insurance AND the appropriate Medicare Part D Prescription Plan: CHOICES, 1-800-994-9422, Connecticut's program for Health Insurance Assistance, outreach, information and Referral Counseling and Eligibility Screening" (affiliated with the Area Agencies on Aging.) You can also check the CT Insurance Department site for Medigap policies.
American Association of Retired Persons, Consumer Affairs Division, 601 E Street, NW, Washington, D.C. 20049, telephone (202) 434-2277. http://www.aarp.org
National Association on Area Agencies on Aging, 1112 16th Street, NW, Washington, D.C. 20036, telephone (202) 296-8130 (maintains a nationwide "Eldercare Locator Number," a toll-free number for information about public programs for older Americans. Call 1-800-677-1116).
Brookdale Center on Aging, Hunter
College, 425 East 25th Street, New York, NY 10010. Tel: (212)
481-4426; Fax: (212) 481-5069. Many useful publications.
I can only provide general information, and will not provide advice about a particular case without a formal engagement. Writing to me does not create an attorney-client relationship. IF YOU WISH TO ARRANGE A CONSULTATION, PLEASE NOTE THAT WHEN ADVISING ABOUT PLANNING FOR AN ELDERLY PERSON'S ASSETS, OR PREPARING DOCUMENTS FOR AN ELDERLY PERSON TO SIGN, THAT PERSON IS MY CLIENT AND IF THE PERSON IS COMPETENT, I MUST BE ABLE TO MEET WITH THAT PERSON ALONE. (AND IF NOT COMPETENT, CAN'T SIGN DOCUMENTS!)
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Davis O'Sullivan & Priest LLC
Attorneys at Law
129 Church Street, Suite 805
New Haven, CT 06510
Fax: 203-774-1060 or 776-4411