Metlife recently released their study confirming that nursing and assisted living rates increased nationwide between 2009 and 2010. For Maryland, in the Baltimore region nursing home costs for semi-private rooms ranged from $6,200/month to $8,742/month. Nursing home costs for private rooms ranged from $6,510/month to $11,005/month. Statewide, assisted living costs in 2010 ranged from $2,800/month to $$8,250/month with the average assisted living cost at $4,122/month.
Nursing Home Expenses
Use of Medicaid Recipient’s Income to Pay Existing Nursing Home Expenses
The Department of Health and Mental Hygiene released a critical Medical Assistance eligibility update (MR 154). The changes in this update are profound. It now allows a nursing home Medical Assistance recipient to use her income to pay for nursing home related expenses (up to 3 months retroactive) to the extent Medical Assistance does not cover said expenses (i.e. she has resources in excess of $2,500). This is a profound change by the Department and took many years of litigation by another respected elder law attorney to finally achieve this result. Bottom line, however, is that this can be a benefit for many families that are faced with outstanding nursing home expenses with no normal Medical Assistance coverage for said expenses.
The issue is this, your mother has outstanding nursing home bills and when the application was made for Medical Assistance, she did not have enough assets to pay these invoices. Given the size of nursing home costs, the outstanding expenses could well be thousands, even tens of thousands of dollars. The nursing home is going to look for payment of these invoices and may well start the involuntary discharge process unless they are paid. This new Medical Assistance provision allows for mom’s income to be used to offset these expenses for the three months prior to eligibility. Since this is a brand new provision, it is unclear at present at how efficiently such a request will be implemented by the Department of Social Services. If you find yourself in this position, it is best to contact an elder law attorney to guide you through this process.
Update: The Department of Health and Mental Hygiene will likley apply the allowance for three months prior to the application date which will overlap the current retroactive Medical Assistance eligibility period. However, there will be some instances where retroactive Medical Assistance eligilbity may not be available and where this new provision may be of profound help to many individuals.
Nursing Home Discharges
Once a resident is settled in a nursing home, being told to leave can be very traumatic. Nursing homes are required to follow certain procedures before discharging a resident, but a facility may occasionally attempt to “dump” an undesirable resident by transferring the resident to a hospital and then refusing to let the him or her back in. However, residents can fight back and challenge such discharges.
According to federal law, a nursing home can discharge a resident only for the following reasons:
- The resident’s health has improved
- The resident’s needs cannot be met by the facility
- The health and safety of other residents is endangered
- The resident has not paid after receiving notice
- The facility stops operating
Unfortunately, sometimes nursing homes want to get rid of a resident for another reason–perhaps the resident is difficult, the resident’s family is difficult, or the resident is a Medicaid recipient. In such cases, the nursing home may not follow the proper procedure or it may attempt to “dump” the resident.
If the nursing home transfers a resident to a hospital, Maryland law requires that the nursing home hold the resident’s bed for a certain number of days. Before transferring a resident, the facility must inform the resident about its bed-hold policy. If the resident pays privately, he or she may have to pay to hold the bed, but if the resident receives Medicaid, Medicaid will pay for the bed hold. In addition, if the resident is a Medicaid recipient the nursing home has to readmit the resident to the first available bed if the bed-hold period has passed.
In addition, a nursing home cannot discharge a resident without proper notice and planning. In general, the nursing home must provide written notice 30 days before discharge, though shorter notice is allowed in emergency situations. Even if a patient is sent to a hospital, the nursing home may still have to do proper discharge planning if it plans on not readmitting the resident. A discharge plan must ensure the resident has a safe place to go, preferably near family, and outline the care the resident will receive after discharge.
From www.elderlawanswers.com.
Pooled Trusts
Transferred to Pooled Trust Can Be Used to Save Assets
For the past number of years there have been questions as to whether Medicaid transfer-of-assets penalties would apply to transfers to pooled trusts by individuals age 65 and older. A Centers for Medicare and Medicaid Services (CMS) memo dated April 14, 2008, from Gale Arden (Baltimore) to Jay Gavens (Atlanta Region IV) stated that “only trusts established for a disabled individual age 64 or younger are exempt from application of the transfer of assets penalty provisions ( see section 1917(c)(2)(B)(iv) of the Act.)” This was followed in May 2008 by a Boston Regional Office bulletin stating that transfers to pooled trusts are subject to transfer penalties.
Not all states are imposing a penalty; some allow transfers to pooled trusts by people of all ages. The latest such state is Maryland. CMS stated that after researching this “complicated and nuanced” area of law, it had concluded that “[a]s a matter of policy, there is no age limitation imposed by existing federal or state law on who may transfer assets into a sub-account of a pooled trust. Accordingly, a disabled beneficiary 65 years of age and older may transfer assets into an approved pooled trust sub-account without penalty”.
According to a recent discussion on the National Academy of Elder Law Attorneys’ listserv initiated by a Georgia ElderLawAnswers member, Maryland joins at least 10 other states that permit transfers by those over 65 to a pooled trust. These states are, in addition to Maryland: Alabama, California, Colorado, Florida, Iowa, Massachusetts, Michigan, Ohio, Utah and Wisconsin. (from www.elderlawanswers.com)
However, the use of pooled trusts is not a panacea for asset protection from nursing home costs. There are restrictions on fund usage, maintenance expenses, and other profound issues. However, for some people, this may be an attractive way to set aside funds to pay for items Medical Assistance will not cover. This policy clarification by CMS is an important, and positive, development for Maryland seniors.
Guardianship
If My Sister and I both File for Guardianship for our Mother, who has Priority?
The starting point is what type of guardian do you seek. There are two types of guardians. The first is the guardian of the person. It is this person that makes medical related decisions on behalf of the disabled. The second type of guardian is the guardian of the property. This person makes strictly financials decisions on behalf of the disabled. Both types of guardians need not be assigned at the same time. The priority for each, while similar, is different.
Maryland Ann. Code Est. & Trust § 13-707 provides as follows, as it relates to the priority of eligibility of someone asking the court to be appointed as guardian of the person.
Persons are entitled to appointment as guardian of the person according to the following priorities:
(1) A person, agency, or corporation nominated by the disabled person if the disabled person was 16 years old or older when the disabled person signed the designation and, in the opinion of the court, the disabled person had sufficient mental capacity to make an intelligent choice at the time the disabled person executed the designation;
(2) A health care agent appointed by the disabled person in accordance with Title 5, Subtitle 6 of the Health-General Article;
(3) The disabled person’s spouse;
(4) The disabled person’s parents;
(5) A person, agency, or corporation nominated by the will of a deceased parent;
(6) The disabled person’s children;
(7) Adult persons who would be the disabled person’s heirs if the disabled person were dead;
(8) A person, agency, or corporation nominated by a person caring for the disabled person;
(9) Any other person, agency, or corporation considered appropriate by the court; and
(10) For adults less than 65 years old, the director of the local department of social services or, for adults 65 years old or older, the Secretary of Aging or the director of the area agency on aging, except in those cases where the department of social services has been appointed guardian of the person prior to age 65. Upon appointment as guardian, directors of local departments of social services, directors of area agencies on aging, and the Secretary of Aging may delegate responsibilities of guardianship to staff persons whose names and positions have been registered with the court.
So, if a son and daughter both wanted to become guardian of the person for their mother and the daughter was a health care agent of the mother in accordance with Title 5, Subtitle 6 of the Health-General Article, she would have priority of appointment over her brother who was not a health care agent. However, please note that this is only a starting point. If the son could “show cause” why the court should over look this priority, the court may overlook this statutory priority and pick the son, even though he was not the named health care agent.
The analysis for priority of appointment for guardian of the property is different. Maryland Ann. Code § 13-207 provides, in part:
(a) Persons are entitled to appointment as guardian (of the property) for a minor or disabled person according to the following priorities:
(1) A conservator, committee, guardian of property, or other like fiduciary appointed by any appropriate court of any foreign jurisdiction in which the minor or disabled person resides;
(2) A person or corporation nominated by the minor or disabled person if the designation was signed by the minor or disabled person after his 16th birthday, and, in the opinion of the court, he had sufficient mental capacity to make an intelligent choice at the time he executed the designation;
(3) His spouse;
(4) His parents;
(5) A person or corporation nominated by the will of a deceased parent;
(6) His children;
(7) The persons who would be his heirs if he were dead;
(8) A person or corporation nominated by a person who, or institution, organization, or public agency which, is caring for him;
(9) A person or corporation nominated by a governmental agency which is paying benefits to him; and
(10) Any other person considered appropriate by the court.
Please note that section 10 of this section allows the court to appoint “any other person considered appropriate.” So, if all of the interested parties (i.e. children, etc.) are deemed undesirable (for whatever reason), the court could well assign an attorney, not affiliated with any of the interested person, to serve as guardian of the property.
The above listed information is but a snap shot of some of the issues relating to priority. Often, the determination of guardianship is both document driven and fact driven.
Online Legal Forms
Online Legal Forms Company Sued
LegalZoom, one of the most prominent sellers of do-it-yourself wills and other estate planning documents, is the target of a class action lawsuit in California charging that the company engages in deceptive business practices and is practicing law without a license.
The lawsuit was filed in Los Angeles Superior Court, by Katherine Webster, who is the niece of the late Anthony J. Ferrantino and the executor of Mr. Ferrantino’s estate.
Knowing that he had only a few months to live, Mr. Ferrantino asked Ms. Webster to help him use LegalZoom to execute a will and living trust. Based on LegalZoom’s advertising, Ms. Webster says she believed that the documents they created would be legally binding and that if they encountered any problems, the company’s customer service department would resolve them.
But after the living trust documents were created and signed, Ms. Webster could not transfer any of her uncle’s assets into the trust because the financial institutions that held his money refused to accept the LegalZoom documents as valid. Ms. Webster tried to get help from LegalZoom, with no success. The trust was still not funded when Mr. Ferrantino died.
Ms. Webster was forced to hire an estate planning attorney, who petitioned the court to allow the post-death funding of the trust. The attorney then had to convince the banks to transfer the funds — a more difficult task following Mr. Ferrantino’s death. The attorney also discovered that the will LegalZoom created for Mr. Ferrantino had not been properly witnessed. All this cost Mr. Ferrantino’s estate thousands of dollars.
The lawsuit claims that Ms. Webster and others like her relied on misleading statements by LegalZoom, including that LegalZoom carefully reviews customer documents, that it guarantees its customers 100 percent satisfaction with its services, that its documents are the same quality as those prepared by an attorney, and that the documents are effective and dependable.
“Nowhere in the [company’s] manual do defendants explain that using LegalZoom is not the same as using an attorney and that its documents are only ‘customized’ to the extent that the LegalZoom computer program inputs your name and identifying information, but not tailored to your specific circumstances,” the lawsuit states, adding that “the customer service representatives are not lawyers and cannot by law provide legal advice.”
Ms. Webster is suing not only on her behalf but on behalf of anyone in California who paid LegalZoom for a living trust, will, living will, advance health care directive or power of attorney. The lawsuit estimates this class embraces more than 3,000 individuals.
“LegalZoom’s business is based on nurturing the false sense of security that people do not need to hire a traditional attorney,” says San Francisco attorney Robert Arns, one of the attorneys who filed the lawsuit. “The complaint points out that LegalZoom advertises that you don’t need a real attorney because its work is legally binding and reliable. That’s misleading. Improperly prepared estate planning documents are a ticking time bomb that can result in improper tax consequences and other items that could cost the estate and heirs huge sums.”
“LegalZoom preys on people when they’re at their most vulnerable, when they are of advanced age or poor health and need a will or a living trust,” adds San Francisco elder abuse attorney Kathryn Stebner, Ms. Webster’s lead counsel.
One of the defendants named in the suit is LegalZoom co-founder Robert Shapiro, who appears on the LegalZoom Web page and TV ads and who is best-known for being one of O.J. Simpsons attorneys.
This is not the first suit against LegalZoom. In December 2009, a Missouri man who paid LegalZoom to prepare his will sued the company for engaging in the unauthorized practice of law (Janson v. LegalZoom). The lawsuit is also seeking class action status. LegalZoom is trying to have the case removed from Missouri state court to the United States District Court for the Western District of Missouri.
From www.elderlawanswers.com.
Maryland Power of Attorney – Part 2
Maryland Power of Attorney
Upon review of the new financial power of attorney statutory language for both the short and long form, there are many good aspects with the new provisions. There are enforcement provisions in this new law. Before, a bank could refuse to honor your power of attorney and there would be virtually no way to force the bank to honor your power of attorney other than jump through their unique requirements. The agent must keep a record of all receipts, disbursements and transactions. There are other requirements as well. The execution requirements will change. While there is bound to be much confusion when this is enacted on October 1, 2010, overall, this was a good move by the Maryland General Assembly and this a positive development for our seniors. There are more safeguards into its use. There more defined routes to attack misuse. There is language that can be used to make this enforceable.
If you would like to know the background of why the new power of attorney laws are called “Loretta’s Law” please follow this link:
Maryland Power of Attorney
Maryland Power of Attorney
The Maryland General Assembly just passed and the governor signed into law sweeping new changes regarding Maryland financial powers of attorney (Maryland Uniform Power of Attorney Act – Loretta’s Law). There are a whole host of changes including new execution requirements, new statutory language, enforcement provisions, financial agent disclosure and non-disclosure requirements, and agent record keeping responsibilities. The new law goes into effect October 1, 2010.
Contested Guardianship
Adult contested guardianship can occur when a parent losses the ability to make decisions for her health and/or her financial well-being.
Is There a Need for a Guardian?
Having a properly executed financial power of attorney and advance directive can certainly avoid the need for guardianship in many instances. But, what happens if the financial power of attorney holder or the health care agent abuses his/her role as agent? What happens if a new financial power of attorney or advance directive is created under circumstances where the validity of the document is questionable? One possible, and most likely scenario, involves invoking court oversight by filing a petition for guardianship. The guardianship process can be complex and may not be the appropriate route for all circumstances.
Questions?
Post your contested guardianship questions here.
Pooled Trusts
In a landmark opinion by the Department of Health and Mental Hygiene, clarity was reached that transfers into a pooled trust can occur without triggering the Medicaid penalty even if the trust beneficiary is over 65 years of age. The question for many is: 1) when a loved one is in a nursing home can the assets be protected from nursing home expenses and 2) can we set aside and used a loved one’s assets to pay for things Medicaid cannot pay? For years, the frustrating answer for the use of pooled trusts was “no.” The problem was the transfer into the trust created a Medicaid penalty. This is a period of time were the applicant will not qualify for Medicaid (i.e. Medical Assistance in Maryland) under any circumstances for a period of months. So, if the applicant transferred $68,000 into the pooled trust (in 2010), then if she needed Medicaid relief within the next five years she will not qualify for Medicaid relief for ten months (at best, starting when she first seeks benefits). Removing the penalty period makes sense both from a Maryland policy perspective and a would be applicant’s perspective. However, even lifting the penalty transfer provisions, the use of a pooled trust is not for every would be Medicaid recipient interested in asset protection. Please contact your elder law attorney to see if the pooled trust route is the right choice for your circumstance.