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“I Love you Wills & Trusts” for Seniors? Bad Idea!

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March 9, 2015

- Blog, Chicago, Chicago Elder Law, Chicago Elder law attorney, Chicago Suburban Elder Law Attormey, Chicagoland Elder Law, Elder Law Articles, Estate Planning, Estate Planning Attorney, Medicaid and Paying for Nursing Home Care, Medicaid spend down planning, senior estate planning

You know the kinds of wills I’m talking about. The husband leaves everything to the wife, the wife leaves everything to the husband, and after they both die, everything goes to the children. This works well for situations in which the spouses are healthy one day and deceased the next. However, as most of us know, life doesn’t usually happen that way anymore. Some research indicates that 69% of individuals over 65 will require some kind of long-term care in their lifetimes. Thus, many spouses worry that if they predecease a disabled spouse who is currently in a nursing home or will require long-term care at some point in the near future, there will be insufficient funds available to provide for the institutionalized spouses’ needs. This is an especially relevant concern for expenses that are not covered under Medicaid, like a care manager, private nurse, single room, and certain therapies or drugs. Another concern is that the availability of funds from “I love you” wills and trusts will disqualify the surviving ill spouse from eligibility for Medicaid benefits. As you know from prior articles, Medicaid is the only long-term-care governmental program in the United States. Medicare does not cover long-term custodial care. To solve this problem many of our clients rely on a “testamentary trust:” a trust built into the will of each spouse. For many estate planners, this is counterintuitive because much estate planning occurs within the context of a revocable living trust. In order to preserve access to Medicaid eligibility without requiring that the surviving spouse spend down the assets and lose the chance to maintain a “rainy day fund,” creating a testamentary trust in the will of the pre-deceasing spouse is essential. What this means is that around age 55, you have to completely revise your wills and trusts to accommodate a different paradigm of thought. The thinking process is no longer what happens if I die? Rather, the question is what happens if I don’t die and live a long time with expensive long-term care. The new paradigm requires a new estate plan. If you consider yourself middle-class (meaning that your net worth will be significantly impacted by the cost of long-term care for you and/or your spouse) and are over age 55, I suggest that you revise your estate plan to reflect this newer paradigm as soon as possible.
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Read The Nursing Home Contract BEFORE You sign it!|Illinois and Chicago Elder Care Attorney Blog

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May 13, 2013

- Blog, Chicago Elder law attorney

Nobody would buy a home without being represented by a real estate attorney. So, why is it that most seniors are signing nursing home contracts in the Chicago metropolitan  that require them to pay $6,000-$10,000 a month, for the rest of their lives, and never give them to an elder law attorney to review until after they’ve signed them and moved in? Nursing homes in Chicago and Chicago suburbs can cost anywhere between $6,000 and  $10,000 a month. That means that a nursing home contract can cost you between $72,000 and $120,000 a year! How can you enter into a contract of this magnitude without the advice of elder care counsel? Here are the risks you run in signing these contracts: 1) Losing access to the court system if something goes wrong in the nursing home. 2) Asking the senior’s children to sign as guarantors. Now the kids are liable! 3) Dictating to a senior what the senior may do with his/her own money while they are living in that particular facility and paying privately. 4) Requiring large deposits before one may apply for Medicaid. 5) Making legal and ethical asset protection planning by a senior  breach of contract. Remember: some nursing homes want you to believe that a single person must be down to $2,000 of assets before Medicaid becomes available. This is far from the truth. Medicaid allows for the legal and ethical repositioning of assets so that you can be at the eligible Medicaid level and still have a “rainy day fund” with which to buy hearing aids, have infected teeth extracted, buy eyeglasses, buy a TV for your room, etc. You wouldn’t buy a home without having a competent real estate attorney representing you, right? So, why would you buy into your nursing home without a competent elder care lawyer representing you before you sign the nursing home contract? Stay tuned, more to come.   Anthony Ferraro  
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What is the difference between guardianship and power of attorney? | Chicago Elder Law Attorney Anthony B. Ferraro

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August 30, 2012

- Blog, Elder Law Articles, Estate Planning, Guardianships

Guardianship is a legal relationship where a court gives someone (the guardian) the power to make personal decisions for another (the ward). The proceedings are started by a family member or friend who initiates a petition in the circuit court in the county where the individual resides. A licensed physician must conduct a medical examination in order to establish the individual’s condition. It is the court of law that then determines whether the individual is able to meet the essential requirements for his or her health and safety, or not. If the individual can’t, the court appoints a guardian to make personal decisions for that person. The guardian — unless limited by the court — has the same rights, powers and duties over his ward as parents do over their minor children. The guardian must report to the court annually. A power of attorney is a legal document where one person (the principal) designates another person (the agent) to act on his or her behalf, either for financial or healthcare decisions. A conservatorship is a legal relationship whereby a court gives a person (the conservator) the power to make financial decisions for another (the protectee). Court proceedings here are very similar to those of a guardianship, except the court of law determines whether an individual lacks the capacity to manage his or her financial affairs. If this is the case, the court appoints a conservator to make financial decisions for the person. Often, the court will appoint the same person to act as guardian and conservator for the individual. Just as with the guardianship, the conservator must report to the court annually. Powers of attorney for healthcare and property/financial decisions are relatively inexpensive and a private way to determine which family member or friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. You must consider that if you do not have powers of attorney, or if the papers for one are not drafted properly, your loved ones may later face court proceedings and court supervised guardianship and/or conservatorship, if something happens to you. A court proceeding is not only costly, but the person who ultimately is appointed as your guardian/conservator might not be someone whom you would have chosen for these sensitive decisions.
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Do I need a lawyer to draft a durable power of attorney for property/financial decisions? | Chicago Long-Term Care Planning Attorney Anthony B. Ferraro

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August 29, 2012

- Blog, Elder Law Articles, Estate Planning, Guardianships

A durable general power of attorney for property/financial decisions allows a person to plan for care and control of property in the event he or she becomes incapacitated. It is a legal document where an individual (the principal) authorizes another (the agent) to act on the former’s behalf for financial decisions. Powers of attorney are the single most important documents to put in place so a family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If something happens where you become unable to make decisions and you don’t have a power of attorney, your family might later get tied up with court proceedings and court supervised guardianship and/or conservatorship. You don’t necessarily need a lawyer to draft the powers of attorney, but you have to be careful. Without the proper, precise wording, your agent might not be able to work with some of the issues important to you. While some people buy a “form document” power of attorney from an office supply store or download one from the Internet, these documents might not address certain things. They can, however, legally authorize someone to act on another’s behalf. But, for example, the law states that your agent cannot handle certain matters unless specific working in the document empowers him or her to do so. Things that are covered in this manner include the power to make gifts on your behalf and the power to remove and/or add assets to a trust.  Laws vary from state to state, so check to see if a form document addresses key issues you want covered. All of these powers can be vital in planning for and around Alzheimer’s care. That’s why it’s so important to complete documents for them now, while your loved one still has the mental capacity to do so. Otherwise, it could quickly become too late, as mental and cognitive abilities decline.
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What can you explain about advance directives? | Chicago, Illinois Elder Law Attorney Anthony B. Ferraro

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August 28, 2012

- Blog, Elder Law Articles, Estate Planning

An advance directive is a form of direction that allows a person to express healthcare preferences in the case that person becomes unable to make or communicate his or her own decisions. Advance directives include a host of options, such as power of attorney for healthcare decisions, living wills and informal directives people make in letters, conversations and conduct. Any advance directive must be signed while a person still has approved mental capacity to sign legal documents. All people have a constitutional right to refuse any medical treatment, including ventilators and feeding tubes. This was determined by a Supreme Court decision called Cruzan et ux v. Director, Missouri Department of Health. There are also state laws that authorize an individual to name a person to make healthcare decisions for when he or she is unable to do so himself or herself. Advance directives are intended to ensure that a person’s wishes are known — and followed. Among other things, they allow a person to state wishes regarding the potential use of life-prolonging procedures. The necessary documents will be most helpful to survivors if wishes are discussed ahead of time with family members, friends and healthcare providers as part of advance care planning. The most common healthcare directive is the Power of Attorney for Health Care Decisions. It allows you to appoint a person to make healthcare decisions if you are incapacitated, and it also allows one to state wishes about issues such as life support and organ donation. The document would go into effect only when the creator of it cannot make or communicate decisions for himself or herself. When a person completes an advance directive, copies of it should be given to corresponding physicians, family members, clergy, attorneys, friends and other appropriate people. The details of the directive should be discussed. Whenever the person is hospitalized, a copy should accompany him or her. The person also should ask the doctor to make it a part of the permanent medical record. Contrary to what some might believe, an advance directive is valid in any state. However, because there are state-to-state differences, it is recommended that people have documents drawn up, witnessed and notarized in the state where they live. Advance directives then stay in effect until the creator’s death, unless that person revokes it ahead of then.
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Would I benefit from a support group for Alzheimer patient family members? | Chicago Elder Law Attorney Anthony B. Ferraro

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August 23, 2012

- Alzheimer's Care, Blog, Elder Law Articles

First off, a support group is not necessarily for everyone. BUT for most Alzheimer’s family it IS a godsend. There are many types of groups you can join. You need to find one that makes you feel comfortable. They typically have a special theme or focus, such as for spouses, adult children, caregiving aspects, etc. You should find a group that meets at least twice a month to get the best benefit. You also might consider a group that generally discusses caregiving issues. Most issues with caregiving are similar, no matter what the disease. Some issues confronted might be frustration, guilt, anger, fatigue, finances, physical challenges such as incontinence and so on. The goal of a support group is to give you a confidential, secure way of expressing your feelings and concerns. This can lessen pressure or anxieties you might be feeling. The caregiving you’re doing is a difficult job, one that nobody really asks for. You don’t volunteer for it but are volunteered for it, so to speak. Sharing with others who identify with your situation can be affirming, comforting and validating. You also can talk to the group to find solutions to problems you might be having. Odds are that someone else in the group already has experienced a similar problem and can relate to it, and probably supply a practical solution. The individual with Alzheimer’s also can benefit from being part of a support group. He or she needs to talk about feelings and experiences with the disease. Joining a support group can help lessen frustration and anger. Members of such groups talk openly about having the disease, what to expect and how to plan for it. Therefore, the participant must first be aware of his or her diagnosis to take part. Support groups for patients themselves is a fairly new concept so you might not find them as readily available as those for family members. So far they have typically been more common in larger metropolitan areas. Keep in mind that if you live in an area that does not have a support group, there are groups established online. One example is The Alzheimer List, which is sponsored by the Alzheimer’s Research Center in St. Louis and can be found here.      
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How can we encourage a more collaborative spirit, rather than “them vs. us,” when it comes to my mother’s nursing home staff? ? | Chicago Long-Term Care Planning Attorney Anthony B. Ferraro

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August 22, 2012

- Alzheimer's Care, Blog, Elder Law Articles

First of all, for family members: When you first admit a loved one to a nursing home, you should get to know the staff. Let them know that you care about their well being (in addition to your loved one’s) and that you would like an open relationship so you all can discuss issues concerning your mother’s care. Inform them about pertinent information concerning her and her life — what she likes, dislikes, any habits she might have, typical moods, and what seems to work when approach her in different situations. The more her caregivers know, the better they can care for her. Compliment staff members when you learn about them doing something you like. Be involved at the facility as much as possible. Attend social events and family council meetings if you can. One good example of relationships being built very well involves a man who took a picture of his wife and the staff on her unit. He had an 8-by-10-inch shot of it made and wrote the name of each caregiver underneath it. When placed on his wife’s closet door, it served as an aid to helping her recognize the people taking care of her. It also made the staff members feel very included. It made them feel important and let them know that the family really cared about them. This gesture built a lot of good will and enhanced his wife’s care. To the staff: Don’t be intimidated by residents and/or their families. You are the frontline worker, an honorable position. Without you, there would be no care for their loved one. That is a compliment of the highest order. Show interest not only in the resident, but also his or her family. Introduce yourself and tell them a little bit about your background, your interests, how long you have been a caregiver and why you are in that line of work. When family members enter the unit, greet them cheerfully and give them information about their loved one, whether the news is good, bad or indifferent. What many caregivers don’t think to do is call a resident’s family if something good happens during the day. These are blessings that can be few and far between for family members, and they’ll go a long way. Unfortunately, there can be stigmas about nursing homes and their caregivers. For the most part, these workers are intent on doing a good job and truly care about what they do and who is in their charge. Everyone needs to work together to overcome negative stereotypes so residents will have positive experiences in their new home.
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My father keeps asking to go home. What do we tell him? ? | Chicago, Illinois Elder Law Attorney Anthony B. Ferraro

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August 20, 2012

- Alzheimer's Care, Blog, Elder Law Articles

When your father or any loved one starts to ask about home, someone could drive them past a previous home, even from childhood. Often, he will not recognize the old house because a house and a home are two different things. That’s why it is best to make him feel safe and secure, regardless of wherever he is. To most people, “home” is a place where we feel loved and accepted — and safe. So the best way to answer your question is to think about the word “home” and what it signifies. Depending on where he is with memory loss, your father might be conjuring thoughts of a childhood home with his parents and siblings. Or the home where he was first married, the kids were young or any time before, after or in between He might be living in the same home he’s been in for 20 or 30 years and still ask to go home. Due to the nature of Alzheimer’s, your dad is likely feeling insecure, fearful, even unlovable. Please pay close attention to this next point: It is not your fault. He is dwindling a bit, day-by-day, and he is frightened. Fear can drive many emotions, not the least of which are insecurity, anxiety, anger and low self-esteem. Your father needs to feel safe. If he doesn’t carry good feelings about himself, he probably doesn’t feel he can be loved by anyone. Remember that the most important thing to realize is you need to constantly validate his feelings. Instead of telling him he is home, tell him simply that he is in a safe place and that he is loved very much. You can tell him, for example, “Dad, you’ll be staying with me and Anthony for a while. We’re happy you’re here and we love you.” Reminiscing about his childhood and looking back at his life and life accomplishments also should make him feel good about himself and decrease negative feelings. Because Alzheimer’s patients typically have short-term memory loss, he will nonetheless continue to ask about “home.” Repeat over and over that he is in a safe place and loved very much. Giving hugs throughout the day will truly say much more than words. A hug produces feelings of love, acceptance and security — three big concepts that continually need addressing.  For more information regarding how to treat a loved one with Alzheimer’s, click here.
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What do they mean by “division of assets” when my mother is applying for Medicaid to pay for a nursing home? | Chicago Elder Law Attorney Anthony B. Ferraro

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August 13, 2012

- Alzheimer's Care, Blog, Elder Law Articles, Medicaid and Paying for Nursing Home Care

It applies only to married couples and is a phrase commonly used for the Spousal Impoverishment provisions of the Medicare Catastrophic Act of 1988. It changed the eligibility requirement for Medicaid in situations where one spouse needs nursing home care and the other doesn’t. Basically, the law says that it makes no sense to impoverish both people when only one needs to qualify for Medicaid coverage for nursing home care. Because of this distinction, “division of assets” was created. This is basically how it works: The couple gathers all of their non-exempt (countable) assets in a review. Depending upon the rules of your particular state, exempt assets are usually: the home, personal and household belongings, a single vehicle, burial plots and irrevocable funeral plans, the cash value of life insurance (for cash surrender values up to $1,500 only) and cash (the amount varies from state to state). These non-exempt assets are then divided into two, with the at-home (“community”) spouse allowed to retain one-half of the assets, up to a maximum of about $110,000. The other half of the countable assets must be “spent down” until a certain amount remains. The amount varies from state to state. This amount of countable assets that the at-home spouse gets to keep is called the Community Spousal Resource Allowance (CSRA). The at-home spouse is given a monthly income floor, which is established by states individually. This is called the Minimum Monthly Maintenance Needs Allowance (MMMNA). The community spouse is allowed to keep a minimum monthly income ranging from about $1,750 to about $2,650. In the case the community spouse doesn’t have an income of at least $1,750, she or he may take income from the nursing home spouse in an amount large enough to reach the MMMNA bottom threshold. The nursing home spouse’s remaining income (minus a persona-needs allowance) goes to the nursing home. This can help the community (at-home) spouse avoid having to dip into savings each month, which would gradually bring impoverishment. If you’re in this situation, you should seek advice from someone who knows Medicaid law intimately well. You can find elder law attorneys in your area by visiting www.NAELA.org, the website for the National Academy of Elder Law Attorneys.  You can also find more information about Medicaid by clicking here.
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My father has late-stages Alzheimer’s and gets food pocketed in his throat, causing aspiration and food back-up. Does he need to get a feeding tube? | Chicago Elder Law Attorney Anthony B. Ferraro

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August 9, 2012

- Alzheimer's Care, Blog, Elder Law Articles

This can be a tricky subject. There is a lot of negative information circulated about feeding tubes, but they also can serve a legitimate, helpful purpose. First off, if your father has an advance directive, review its contents for guidance about his wishes regarding a feeding tube. Be sure to speak at length with his doctor about this issue. Sometimes other interventions are possible, such as speech therapy. Speech pathologists and therapists can introduce special swallowing techniques. However, the patient must be aware enough to understand instructions and carry them out. Discuss the different kinds of feeding tubes with your loved one’s doctor. There are numerous types and each should be explored. Some of them require more invasive procedures than others. Less invasive means less stress for your father. The doctor also should be able to explain the risks of using a feeding tube — and what the risks are if one isn’t used. Don’t hesitate to get a second opinion about feeding tubes. They are frequently an uncomfortable topic. Even if you have used a doctor for many years and trust him or her, it never hurts to get a second opinion. You need to be at peace when you make a decision about a feeding tube.
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