Author Archives: A Roa

How COVID-19 Impacts Medicaid Applications

COVID-19 has brought a lot of anxiety regarding long-term care facilities. However, we understand that even in a pandemic, there are seniors who need to be cared for in a nursing home.

With nursing home costs ranging from $9,000 to $12,000 a month, applying for medical assistance (i.e., Medicaid) is a practical reality for most nursing home residents.

But how has COVID-19 impacted how long it takes to process a Medicaid application? There are several factors to consider:

  1. The number of people applying for Medicaid
  2. The number of people processing the applications
    • First, the staff at nursing homes. They fill out the health assessments that are needed as part of the applications.
    • Second, the case workers at the Department of Health. They process the completed applications.

An increase in the number of Medicaid applicants and/or a shortage in the number of people processing the applications will increase the amount of processing time.

Before COVID-19

Before the pandemic, Medicaid applications, especially those with complications, were slow to be processed. This was due to the chronic shortage of case workers at the Department of Health.

At the Start of COVID-19

When the pandemic began, hospitals were keeping their patients longer instead of discharging them to nursing homes. This was because of the growing concern that nursing homes were not prepared to address the spread of COVID-19 amongst their residents.

The result was that, for a period of time, there were fewer transfers to nursing homes, which meant that fewer individuals were applying for Medicaid. Fewer applications resulted in quicker than normal response times for the granting of Medicaid applications. But this was at the beginning of COVID-19.

Currently During COVID-19

Hospitals are now discharging patients to nursing homes at a more regular pace. Therefore, the number of Medicaid applications is back to normal. Also, the processing speed of the case workers is back to normal.

However, the new bottleneck is with the nursing home staff. Due to staff shortage, it’s taking nursing homes longer than normal to provide the health assessments that are needed for the applications.

Local Elder Law Firm: How We Help During COVID-19

These are trying times for most people, but especially the residents and staff at our area nursing homes.

No one likes a delay in the Medicaid application process. If you have a loved one in a nursing home, then you are understandably already worried about the risks of COVID-19. If the process to apply for Medicaid is long and drawn-out, then that can create even more concern. The nursing home is also more anxious about getting paid during this period, and they may institute involuntary discharge proceedings.

A good elder law attorney understands the Medicaid application complexities (from both a nursing home point of view and a client point of view) and how this is going to impact clients. At the Law Office of Adam J. Roa, we help you understand why the Medicaid application process is slower than normal, and we help expedite that process, so your loved one can get the medical assistance they need.

How to Execute Estate Planning Documents During COVID-19

When your relative is in an assisted living facility or nursing home, oftentimes they cannot access their assets any longer. That’s when it is necessary for you to have the financial power of attorney, which allows you to immediately access your loved one’s assets and act on their behalf.

In Maryland, financial powers of attorney must be notarized.

But during the COVID-19 pandemic, how can you safely get estate planning documents notarized?

  1. Before October 2020: Remote notarization

    In the beginning of 2020, Governor Hogan issued emergency measures to allow for remote notarization. Those emergency measures appeared to address the concerns.

    However, in all reality, the emergency measures made it a Herculean effort to still execute a financial power of attorney. The final financial power of attorney resembled a “Frankenstein power of attorney” because multiple authentication documents were stitched together to form one document.

    Unfortunately, the emergency rules expired in October 2020.

  2. After October 2020: Physical presence of a notary

    The current statutory requirement, per Md. Ann. Code Est. & Trust Section 17-110, is that the financial power of attorney must be signed by the principal (i.e., your relative in the nursing home) before a notary public in the physical presence of two witnesses.

    This means that the principal, the notary public, and two witnesses must all be together in person, at the same time, in order for the financial power of attorney to be officially signed and notarized. Virtual presence (e.g., through Zoom or Facetime) for any of those four people is not acceptable.

The Requirement of Physical Presence

The unique challenge during COVID-19 is that there are severe restrictions about who can enter assisted living facilities and nursing homes. On top of that, even in pre-COVID-19 times, many staff members of these facilities were already reluctant to assist in document executions. They’re afraid of being dragged in as witnesses if someone contests the validity of the legal document.

The requirement of physical presence is an issue not only for getting a financial power of attorney notarized. In Maryland, although last will and testaments and advance directives do not need to be notarized, they do require the physical presence of witnesses.

This means that there are complicated issues across the board with getting estate planning documents executed during the pandemic.

Local Elder Law Firm: How We Help During COVID-19

As a result of COVID-19:

  1. There is an even greater need to use the advance directive and financial power of attorney.
  2. But it is even harder to get these necessary documents executed.

At the Law Office of Adam J. Roa, we work with each family and each assisted living and nursing home facility on a case-by-case basis. As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing these essential estate planning documents for your loved one. Please call us at 410-296-8166 x292.

COVID-19 Financial Power of Attorney

The most useful estate planning document during this COVID-19 pandemic is the financial power of attorney.

This document allows you to immediately access your elderly parent’s assets. If you’re unsure whether your parent is paying their bills in a timely fashion, then the power of attorney will allow you to access their financial information and pay their bills if necessary.

If your parent isn’t paying the bills, and if you don’t have the power of attorney, then your parent could risk experiencing the interruption of services (i.e. utilities, telephone, Internet), or the instigation of collection efforts, and the possible tax sale of their house.

Locate All Financial Power of Attorney Documents

As with all estate planning documents, your first task is to locate all financial powers of attorney for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you would have two active financial powers of attorney that may have separate instructions. This will create confusion.

Beware of Weak Powers of Attorney

The other critical area of a financial power of attorney is that if the power of attorney is silent regarding a particular power, then the agent was not granted that power. For example, if the power of attorney is silent regarding the right to access a parent’s life insurance policy, then you, as the agent, have no right to access her policy.

The issue of having a financial power of attorney that is not robust enough is a common issue for older powers of attorney or Internet-driven powers of attorney. This creates problems if you discover too late that your power of attorney is too weak—after an elderly parent has already lost the competency to sign a new document.

How to Execute a Financial Power of Attorney During COVID-19

In Maryland, in order for a financial power of attorney to be properly executed, you must have a witness signature, and that signature must also be notarized. Of course, COVID-19 has made that more challenging.

Governor Hogan issued new emergency rules to implement remote notarization at the beginning of 2020. There were new rules in place that allow for remote execution of the financial powers of attorney.  However, these emergency rules expired in October 2020.   The notary rules in place now require the presence of a notary in front of the signor.  This creates unique issues for clients in assisted living and nursing homes that likely have restrictions on who it admits.  Our office normally works with the assisted living and/or nursing home on a case by cases to work with them regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing a financial power of attorney. Please call us at 410-296-8166 x292.

COVID-19 Guardianship

If your parent or loved one needs someone to make decisions for them, then they will need to have a court-appointed guardian. The main issue for establishing guardianships during the COVID-19 pandemic is the issue of timing.

In Maryland, the normal, non-emergency adult guardianship process is started by filing a petition. After that, it would typically take 6–8 weeks before a hearing would be held to determine who the court was going to appoint as guardian. That has changed under COVID-19 rules.

Maryland Court Guardianship Hearings

After reopening the circuit courts in June 2020, the circuit courts, as of December 2020, entered modified court openings.  Each county will have its own unique policy on in-person vs. remote hearing rules.  However, the general rule, as of now, is that uncontested guardianship will continue to be remotely held for the foreseeable future.    For contested guardianships, this is on a case by case basis.   If there is a strong inclination for in-person or remote hearing for a contested matter, this request should be made expressly to the court.   The other developing matter is the time between when a petition for guardianship is filed and perfected and the eventual hearing date.  That is a continuing to be fluid issue that is impacted by the court closings and the regular rescheduling of court cases.

How to Push Your Guardianship Case Forward During COVID-19

For uncontested matters or matters of limited scope, the best path to proceed is to have all the attorneys in your particular guardianship case cooperate to push for a video hearing. The court is likely going to be more receptive to video hearings if all interested parties are represented by counsel.

Contested Guardianships

The situation is more complicated, however, if the guardianship case is contested—meaning at least two individuals are fighting over who should be appointed as guardian. As long as the alleged disabled person is in a safe environment, then getting a court date in the near future for contested guardianship will be problematic.

Here are some other options you can explore:

  1. Mediations, which can occur remotely, are encouraged. They can be a way to resolve a contested guardianship matter much sooner than having a court rule in a contested matter that may not be set for many months.
  2. What also could be explored is having the interested parties consent to the temporary appointment of a guardian. A key part of this discussion should include agreeing that the temporary guardian is not only limited in time but also has very limited powers. This may be a creative way to address the very urgent decisions now while delaying more complex issues for a court date many months from now.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through your guardianship case. Please call us at 410-296-8166 x292.

COVID-19 Estate Planning

Challenges of Estate Planning During COVID-19

COVID-19 has made everything more complicated and riskier, from getting food to taking care of family members. With the current stay-at-home orders, and with the likelihood of stores and businesses slowly reopening, how can you best care for your elderly parent or loved one?

Essential Elder Law Documents for COVID-19

The most critical estate planning documents for an elderly parent or loved one to have during this period of time are the financial power of attorney and the advance directive. Also important, but not critical for day-to-day activity, is the last will and testament.

Steps to Take During COVID-19

  1. The first step for families to take is to locate these estate planning documents now.
  2. Then, make sure you have complete copies of all of the relevant documents.
  3. It is not uncommon to have older versions of your estate planning documents. However, it is important that you are only using the most recent versions to avoid confusion.
  4. For the financial power of attorney and advance directive, in many cases you can use copies of the documents in lieu of the originals.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing the essential documents of estate planning. Please call us at 410-296-8166 x292.

To learn more, please see the COVID-19 resource that discusses the unique issues for each estate planning document: financial power of attorney, advance directive, last will and testament.

COVID-19 Last Will and Testament

It is human nature to procrastinate. Often, we have clients that review the estate planning documents only when there has been a health care crisis in the family. However, with the global health crisis of the COVID-19 pandemic, many families are now making it paramount to focus on the essential estate planning documents, including the last will and testament.

Locate all Last Wills and Testaments

As with all estate planning documents, you should locate all last wills and testaments for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the most up-to-date version is used.

It is also critical to locate the original last will and testament. Conformed copies are not original documents and will not be accepted by the Register of Wills unless all of the interested parties consent.

How to Execute a Last Will and Testament During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for a last will and testament.

Governor Hogan issued new emergency rules in the beginning of 2020 to implement remote witnessing for last wills and testaments.  However, those rules have now expired.  Witnesses will have to be present for a last will and testament execution.  This presents a unique challenge for those clients that are in assisted living and/or nursing homes.  We will work with an assisted living and/or nursing home on a case by case basis regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing a last will and testament. Please call us at 410-296-8166 x292.

COVID-19 Advance Directive

It is critical during this time period that if you have a loved one in the hospital, in an assisted living facility, or in a nursing home, that you have his/her advance directive. Since contact with a loved one during the pandemic may be extremely problematic, it’s important for you to already have this document, explaining your loved one’s preferences.

Locate All Advance Directives

As with all estate planning documents, you should locate all advance directives for your parent or loved one. It is normal to have older versions, but it is critical that you review the documents to make sure that the newer version negates the older version. Otherwise, you will have two active advance directives that may have separate instructions. This will create confusion.

Not All Advance Directives Are Called Advance Directives

In Maryland, the advance directive has two parts to it:

  1. the health care agent instructions and
  2. the living will.

They normally, but not always, are part of one document called the advance directive.

The health care agent instructions should provide a HIPAA release (medical information disclosure authorization), and the living will should address the three Maryland end-of-life decisions:

  1. terminal condition
  2. end stage condition, and
  3. persistent vegetative state.

Usually one of the biggest issues with the end-of-life choices is whether one should be tube-fed or not. That decision should be very clear in the living will portion of the advance directive.

How to Execute an Advance Directive During COVID-19

The COVID-19 pandemic makes it difficult to find witnesses for an advance directive. There are several restrictions as to who can serve as a witness for a Maryland advance directive. In Maryland, the health care agent cannot be a witness. Also, at least one of the witnesses cannot knowingly inherit anything from the declarant.

Governor Hogan issued emergency rules in the beginning of 2020 to implement remote witnessing for advance directives.  Those rules are now expired.   This creates unique issues for clients in assisted living and/or nursing homes.  Our office normally works with the assisted living or nursing home regarding document execution.

At the Law Offices of Adam J. Roa, it is our practice to review the estate planning documents with the potential signer via Zoom first and then separately arrange for a document execution. For many of our clients, this involves a drive-by document execution.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the process of preparing an advance directive. Please call us at 410-296-8166 x292.

COVID-19 Maryland Nursing Homes

We understand that there is a lot of anxiety regarding nursing homes during this COVID-19 pandemic.

But, just as before COVID-19, seniors are still failing in their health. Many of them will need 24-hour care that can be provided through a live-in aide (very expensive) or through placement at a nursing home.

If Your Loved One Needs Nursing Home Care During COVID-19

However, as of now, many nursing homes in Maryland are not accepting new residents. While nursing homes are taking precautions by separating the COVID-19 residents from those who do not have COVID-19, many facilities are still not admitting any new residents.

As a result, some hospitals are keeping their patients longer than normal because they can’t locate an available nursing home. If a patient has a delayed discharge from the hospital for this reason, then issues can arise with Medicaid and with who is paying for that extended stay.

If Your Loved One Starts Nursing Home Care During COVID-19

For those nursing homes accepting new residents, they will be asking for information relating to your family’s level of assets and income. Be prepared to provide that financial information, as well as providing a copy of the financial power of attorney and advance directive.

If the nursing home wants you to sign the nursing home contract, no matter how nice the director of admissions is, tell them that you need your elder law attorney to review the contract first before it is signed. This is a normal request, and it will help you avoid potential problems in the future, such as having your loved one get involuntarily discharged from the nursing home, or having the nursing home seeking immediate payment from you if the Medicaid application is denied.

If Your Loved One Stays in a Nursing Home During COVID-19

For existing residents of nursing homes, there is a very real issue of staff shortage to address current needs. Staff shortage can often lead to nursing home negligence issues.

Because most nursing homes are not open for family visitations, there is a very real concern of family members not being in a position to determine if the nursing home is still properly caring for their loved one.

One possible solution to this is that many nursing homes will allow for private duty aides/attendants to visit your loved one to provide their care. This is normally a welcome solution for a nursing home that is dealing with a shortage of staff. This can also provide a direct link of information that normally would not exist. This could include not only insight for medication and care, but also open up the possibility for telephone or video calls. Some nursing homes only extend the visiting privileges to certain nurses/aid agencies, while others have less stringent requirements.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the issues of nursing home cases. Please call us at 410-296-8166 x292.

COVID-19 Medicaid

We understand that there is a lot of anxiety regarding nursing homes during this COVID-19 pandemic.

But, just as before COVID-19, seniors are still failing in their health. Many of them will need 24-hour care that can be provided through a live-in aide (very expensive) or through placement at a nursing home.

If you choose to have your loved one cared for in a nursing home, it’s important to understand your options for financial assistance. Since nursing homes charge roughly $9,000 to $12,000 a month, applying for Medicaid (i.e. the government program that helps with medical costs) is still going to be a reality for most families.

Medicaid Applications

Even during the COVID-19 pandemic, Medicaid applications are still being accepted. The Medicaid case workers are now working remotely.

Medicaid Application Tips
1. Send all applications via a private courier to ensure that they are filed.
2. Always make a copy of everything that is filed.

At present, there seems to be a temporary decrease in the amount of time that it takes for a case worker to respond to the initial application. This might be a result of an overall reduction in the number of Medicaid applications, since many nursing homes are not currently accepting new residents. This may be a temporary lull.

If Your Medicaid Application is Denied During COVID-19

If your Medicaid application is denied or not processed in a timely manner due to inaction, then you should make an appeal before an administrative law judge. Even though the pandemic has resulted in making all in-person meetings and Office of Administrative Hearings temporarily suspended and closed to the public, you still have an option.

The Office of Administrative Hearings is encouraging parties to participate remotely. This is not an automatic consideration, so the appealing party must specifically request a remote hearing.

We’re Here to Help During COVID-19

We understand that these are uncertain times. Now, more than ever, is when your loved ones need you to be their advocate in planning for the future.

As an experienced elder law firm in Maryland, we’re happy to guide you through the complexities of Medicaid cases. Please call us at 410-296-8166 x292.

Financial Power of Attorney in Maryland

The key issue with financial powers of attorney is that if the power is not granted in the power of attorney, then it has not been granted. For example, if the power of attorney is silent regarding life insurance transactions, then you will have no right to use that power of attorney for life insurance transactions.

Over a decade ago, each attorney or law firm had their own unique financial power of attorney. However, the problem was that financial institutions could (and would) dishonor a financial power of attorney for no discernible reason.

That all changed when Maryland enacted sweeping financial powers of attorney rules that went into effect on October 1, 2010. From that point forward, Maryland adopted two financial power of attorney forms.

If the form you use is in “substantial compliance” with one of the two statutory forms, then the financial institution must honor it.

Maryland General Power of Attorney and Maryland Limited Power of Attorney

There are many differences between the two Maryland financial power of attorney forms: the Maryland General Power of Attorney (8 pages) and the Maryland Limited Power of Attorney (16 pages). The main difference is that the Maryland Limited Power of Attorney is much more robust than the Maryland General and affords the power of attorney holder a much wider and more useful set of powers than afforded in the Maryland General.

Problems with Internet-driven Powers of Attorney

One of the big issues that I see with Internet-driven powers of attorney (besides the execution issue), is often they do not conform with the Maryland standard power of attorney. Therefore, you are powerless if a financial institution refuses to honor it.

Another huge issue is that the Internet documents are often not nearly as robust as the Maryland statutory forms. It’s as problematic as taking out a rowboat that has half a dozen holes in it. The issue is even worse if a parent was competent at the time the first document was signed, then when you need to use it, you find out there are problems. But, by this point, it may be too late to have a parent sign a new power of attorney, especially if they are no longer competent to sign a new one.

Elder Law Attorney Ensures Proper Financial Power of Attorney

The first document I review when a family comes for a consultation regarding their parent or loved one is the financial power of attorney. I typically know in the first few minutes of the consultation if the document they have is going to help facilitate what we want to do or be a problem.

Don’t try to do this on your own. Have an experienced elder law attorney review your issue and draft a proper financial power of attorney that is robust to handle just about every situation. It is my practice to go through this document with you section by section and explain how each section is used, from a practical point of view.