continuing-care community

Elder law (Massachusetts)

See generally Elder law (U.S.).

Elder law denotes the law, regulations, and prevailing good legal practices applicable to a range of issues affecting individuals aged 65 and over. The subject matter of elder law arises from careful legal analysis of the concerns of elders and their caregivers as to planning for foreseeable circumstances (e.g., property or capacity) and dealing with harmful situations (e.g., abuse or neglect).

Elders in Massachusetts

See generally Elder law (U.S.), Elders in the United States

The concerns of elders and the concerns of their caregivers typically coincide—quality of life, quality of care, wellbeing of the primary caregiver (ordinarily a spouse or family member), and wellbeing of loved ones, including pets.

Elders often find it unavoidable to address these problems: (a) to maximize financing for expensive long-term care versus leaving an inheritance for loved ones; and (b) to wisely select fiduciaries to act on their behalf in case of physical or mental incapacity. Such problems present significant emotional, financial, and legal challenges.

Elder Law in Massachusetts

Massachusetts elder law draws on both federal and State law for its legal content. The Massachusetts Medicaid program has been renamed MassHealth. Other distinctive features include

  • the absence of legislation recognizing living wills substituting reliance upon health care proxies instead
  • a well developed mental health law
  • a well developed case law of trusts based on a traditional "prudent man" standard for investments rather than a list of fixed classes of statutory investment vehicles as required elsewhere.

The Massachusetts law of trusts serves as the paradigm, although certain changes have been made in states which have adopted the Uniform Probate Code (which Massachusetts has not as of 2006). The famous Rogers decision requiring court-appointed monitors for ordered antipsychotic medications by the Massachusetts Supreme Judicial Court was subsequently approved and followed by the United States Supreme Court. Massachusetts is the only state whose judges are permanently appointed as in the federal courts, which has resulted in a bench largely free of political pressure and of greater longevity and experience than in any other state.

Elder Law Attorneys

Attorneys who specialize in assisting elders and their caregivers to appraise and execute their options in such matters are generally known as elder law attorneys.

See generally Elder law (U.S.), Elder Law Attorneys

See generally Elder law (U.S.), Assessing Professional Competence

  • The Massachusetts chapter is the largest and most active State NAELA chapter in the country. Its members meet monthly except during the Summer for continuing legal education and discussions of current legal issues of concern in Massachusetts.

Planning for Foreseeable Circumstances

Health and long-term care

See also Health law

Declining health, mobility, and mental capacity are important yet often unpredictable facts of life for many elders.

Experience teaches that the maintaining of caregiver wellbeing through respite and support programs is one of the best and least expensive ways to maintain the wellbeing of a dependent elder.

Adequate health insurance after reaching the age of 65 is available at reasonable rates under the Medicare program to everyone who qualifies for Social Security benefits. Coverage was increased in 2006, but many elders nonetheless choose to carry supplemental health insurance to fill in the gaps (hence the name "Medigap" insurance). However, Medicare excludes coverage for skilled nursing facilities except up to 100 days arising from hospitalization after 90 days away from hospital or nursing home. Funding for long-term care may come from the patient, long-term care insurance, or Medicaid benefits when the patient qualifies. In 1998, a randomly selected 65 year old was said to have a 45% chance of requiring long-term care, the average length of stay being 6 years. [cite?] Obviously, in some circumstances, such as chronic illness or family susceptibility, a future need for long-term care becomes a probability verging to a certainty.

A top concern for most elders is continuing to live at home for as long as possible. It is widely believed more would remain at home if health aides and visiting nurses were covered as an intermediate step towards full skilled nursing. Medicaid is often described as possessing an "institutional bias" in favor of nursing homes over in-home care. Recent public and private studies suggest substantial cost savings could accrue from a revision of Medicaid policy. [cite?] Costs drive change, so new options should be watched for.

Nursing home choices depend primarily on the medical needs. Some need intermediate care facilities and others need skilled nursing facilities (SNF's). Medicaid ordinarily covers SNF's only.

An alternative placement of particular interest to couples only one of whom requires long-term care is the continuing care community, also known under several cognate names. The couple may start in an apartment, one enter the SNF, the other a smaller apartment, and so on. Although they tend to be expensive, they have worked very well for some. Assistance with LTC facility selection may be provided by a gerontologist or visiting nurse, often a case manager for an elder law attorney. Changing from one facility to another after admission is not impossible but poses difficulties that may be avoided at least for a time. In some locales, legal assistance may be advisable for nursing home admission agreement negotiations. Many protections for the elder can be agreed upon.

Medicaid Planning (MassHealth)

  • Eligibility

Applicants must demonstrate both a health need and a financial need for MassHealth (Medicaid). Health need may be shown by a resident in a skilled nursing facility simply by submitting a certificate from the facility, whereas in other cases documentary proof may be required. Financial need must be shown by submitting a form financial statement with supporting documentation that demonstrates full compliance with MassHealth regulations, an exercise comparable to preparing, filing, and prosecuting a bankruptcy petition or an offer in compromise with the IRS. In general, financial eligibility depends on a showing of countable assets less than a certain threshold ($2,000 in 2006). There are income requirements as well. Some assets are always countable, such as cash. Other assets are countable only at certain times, such as the marital home, not countable while occupied by the applicant's spouse or disabled child, countable otherwise. MassHealth may record a lien on the home for security. Probate estates are subject to claim for repayment to MassHealth, and probate requires notice to MassHealth.

  • Application Process

Assess complexity of the case ASAP (incapacity, trusts, prior transfers, real estate other than the home) If incapacity and no DPA, get guardianship immediately Prepare pre-application spenddown worksheet Prepare HIPAA Medical Information Release for nursing home Expedite by filing complete documentation with application (30-45 days to approval) Coordinate timing of submission with asset transfers Follow up with caseworker a few days after submission MassHealth determines monthly PPA (Patient Paid Amount) and mails a statement PPA = Income – Medicare – Medigap – $60 Personal Needs Allowance Signed by Elder, one authorized under health care proxy or durable power of attorney, or if no other option, by one willing to sign as an Eligibility Representative. But be careful in signing as Eligibility Representative. Liability issues will arise if any incorrect information is submitted, because signer will "assume responsibility for the accuracy of statements." 130 CMR 501.001.

  • Sheltering Assets—Options Before Application

Total assets = countable assets + inaccessible assets + noncountable assets + allowable transfers

The basic strategy is to determine the most desirable (usually the least expensive) plan for reducing countable assets to the threshold ($2,000 in 2006).

Options include return of assets held for others, transfer by gift, transfer in trust, purchase of noncountable assets, purchase of income streams, payment of allowable expenses, and disqualifying transfers, all minimizing total asset reduction.

Certain transfers may help reach eligibility, but intricate MassHealth (Medicaid) regulations apply.

Personal injury settlements may create problems or opportunities. Federal law offers a safe haven for certain narrowly defined trusts established by one other than the beneficiary for the benefit of individuals with special needs. The rules are technical and must be followed. Personal injury attorneys routinely consult with elder law attorneys in setting up such trusts.

Special needs trust for adult dependent child after parents death.

Trusts (funeral trusts, grantor trusts) may be used but their use triggers special rules that must be followed exactly.

Inaccessible assets are not countable. Document inaccessible assets with affidavits documenting the circumstances and reciting refusals to cooperate when necessary. For example, assets are inaccessible for incapacity if there is no durable power of attorney and a guardian has not been appointed yet.

Long-term care insurance may be obtained for elders with taxable estates (over $2 million in 2006) who can be medically underwritten, payments for which may be tax deductible, and which may preserve other investment assets.

If single, sell real estate other than home to avoid having to make a second application

Reverse mortgage proceeds disregard, GLM 19A-36.

Liquidate life insurance policies with cash surrender value down to $1,500 and spend down proceeds

Annuities to transmute assets into income streams

Pension buyouts to transmute income into assets and to fund spenddowns

Sale and assignment of rights to receive estate distributions

Half a loaf (usefulness substantially impaired by DRA 2005)

Spenddown (purchasing noncountable assets)

Home equity (increase with fixup expenses)

  • Sheltering Assets—In The Application

Use certified mail, keep copies and fax confirms

Keep proof of timely response to all MassHealth requests

Request coverage for medical expenses incurred up to 3 months before the month in which the application is filed

Request personal care attendant for community spouse over 65

Indicate highest possible bank balance on date of admission to maximize at-home spouse's resource allowance

Highlight life insurance policies without cash value

Doublecheck trust issues—countable principal or income? are transfer penalties applicable?

Doublecheck transfer issues—is disqualification period really over?

Returning home? Yes unless applicant has adequate LTC insurance

Returning home? Get doctor's certification letter, avoid lien, get up to six months to use applicant's income for some house expenses

FMV of home? MassHealth accepts assessed value, less to lose

Deposit at facility? Dispose of it before filing

  • Sheltering Assets—While Receiving MassHealth Benefits

Undistributed inheritances still subject to probate are inaccessible.

Social Security direct deposit account is protected from creditors.

IRA balances are protected from creditors.

Select representative payee to receive Social Security benefits, not nursing home

Use a Patient Paid Amount worksheet to track account

Write "PPA" in the memo line on monthly checks to the nursing home

Failure to pay nursing home could result in eviction

Avoid automatic transfer each month to nursing home

Direct payments from surplus to Elder's advantage

Spend down small inheritance immediately to avoid termination

  • Medicaid Appeals

[Reserved]

  • Governing law & regulations

130 CMR Chapters 515 to 610

Public benefits

Public benefits, include MassHealth (Medicaid), Social Security and SSDI disability applications and appeals, and special needs trusts (SNTs) not interfering with SSI benefits Social Security

  • Medicare

Eligibility

MediGap insurance

Rx insurance

Benefits

Interaction between Medicaid and Medicare (100 days of nursing home, 90 days out of hospital or nursing home between admissions)

Procedures

Medicare claims and appeals

Medicare Appeals

  • Supplemental Security Income (SSI)

Eligibility

  • Social Security Disability Income (SSDI)
  • Other Public & Private Benefits

State

Charities

Family (legal obligation of grown children to support needy parents)

Surrogate decision-making, including power of attorney and guardianship

  • Durable Power of Attorney

Provides for management of affairs during incapacity of principal.

If significant assets, provide "payment to friends or relatives who stay at the home providing day-to-day companionship or overseeing long-term care. Paying those relatives or friends reduces the risk that they will simply misappropriate assets, or "shop" a declining elder to lawyer after lawyer until one is found who will prepare a new will giving them the estate after the declining elder's death." Barrett 2005 Elder Law for Advanced Estate Planners, ALI–ABA SH-509.

Suggest simple "save the assets, honey" language in their financial powers of attorney. Such language permits the ill spouse's agent to transfer property to the healthy spouse, before the ill spouse's Medicaid eligibility. Barrett 2005 Elder Law for Advanced Estate Planners, ALI–ABA SH-509.

  • Health care proxy & living will

Massachusetts is one of three states which have not passed legislation recognizing living wills.

  • Medicaid Eligibility Representative

—CAREFUL! This is a trap for the unwary.

Liability issues if incorrect info, signers will "assume responsibility for the accuracy of statements." 130 CMR 501.001.

  • Guardianships and Conservatorships, including appointments & removals, administration
  • Fiduciary duties

including duties of attorneys and agents having power of attorney, trustees, executors and administrators, physicians and health care proxies, etc.

Legal capacity

Mental health law, including incapacity, involuntary admissions Incapacity—Who decides?

Planning before incapacity strikes

Denial of incapacity

Removal of a guardian or conservator

Planning for incapacity

Build relationship permitting a discussion of quality of life choices.

Insist client put their life expectations into words and execute documents that protect the plan.

Unplanned incapacity creates chaos.

Wrong person + wrong documents --> woeful results.

Protect client's quality of life if incapacitated

Permit client's incapacity choices to play out

Incapacity drafting, a value-added service

Health care proxy (health care directive)

Durable power of attorney (financial power of attorney) Revocable trust

Disability

Planning for disabled family members

Planning & paying for support of family members

  • Severe disabilities
  • Mental illness

Estate Planning—Elder Law

including the structuring, funding, and management of one's estate during life and its disposition on death through the use of wills, trusts, and other instruments

  • Health care payment options
  • Support obligations

Caregiver wellbeing and respite Support of spouse Support of minor children Support of disabled children Support of needy parents

  • Lifetime estate planning

Financial Planning

CCRC buy-in fee $150,000 plus LTC insurance

Group LTC insurance plans through employer

Charitable contributions may be made from IRA/RothIRA through Dec.2007 under Pension Reform Act of 2006.

Investment advice

  • Estates, including selection of fiduciary, administration, exercise of discretion, and property management

Wills

Effecting final wishes

Estate Administration

  • Trusts

Elements of a valid trust

Principles of equity

Applicable law

Uniform Trust Code (not enacted in Mass.)

By agreement

By will

Trust Accountings

Enforcement and reformation

Special Needs Trusts

Trusts for benefit of persons with disabilities

Institutional trustees

Pooled trusts

Testamentary trusts

Special purpose trusts

  • Probate

Probate, including administration and litigation, probate of estates in Massachusetts, and multi-state probate situations

  • Fiduciary duties in managing trusts and estates

-To conserve assets -To make assets productive -To discharge trust -To account to beneficiaries

  • Fiduciary Administration
  • Property

Property transactions, including life estates, gifts

Real property transactions

Reverse mortgages

Medicare and Medicaid Liens

Gifts

Secured transactions

Transfer of assets

Creditor protection of IRAs

Real Estate and Home Equity Conversions

  • Business planning
  • Asset Protection Options

Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home

Insuring the risk of incapacity and need for LTC

Medicaid planning, supra

Planning for inheritance from others

Avoiding probate

Medicaid planning

Sheltering assets when seeking Medicaid

Installment sales

Tax-free like-kind exchanges

Long-term care insurance for clients with taxable estates who can be medically underwritten, tax deductible, preserves other investment assets

Bankruptcy options and creditor-debtor law

Protected accounts, such as IRA, Roth IRA,Social Security direct deposit account

Homestead

Spendthrift trusts

  • Tax Aspects—Elder Law

Avoiding taxes versus evading taxes

Knowing when to consult tax attorneys and CPAs

Income and deduction calculations

Gain and loss basis adjustments

Taxable trust or grantor trust

Estate, gift, and generation-skipping transfer tax

Retirement plans (ERISA)

Creditor protection of IRAs

Medical savings accounts

Tax qualified and nonqualified long-term care insurance

  • Insurance (life, home, health, long-term care, auto)

Insurance counseling, including Medicare supplemental and long term health insurance issues, life insurance, and annuities

Long-term care insurance will have greatest appeal to clients with taxable estates (over $2 million) who can be medically underwritten (healthy now, no known family predispositions). The premium are tax deductible, and ownership preserves other investment assets in the event long-term care becomes necessary.

Afterword

Yes, it really is that complicated. We're all just paddling as fast as we can.

Dealing with Harmful Situations

Abuse, neglect, or exploitation

May be of the older person, spouse or family member

  • Elder Abuse
  • Nursing Home Neglect

Prevent nursing home abuse and neglect

Recognize nursing home abuse and neglect

Stop nursing home abuse and neglect

  • Personal Injury & Litigation
  • Financial abuse of elders & fraud recovery

qui tam for Medicaid fraud

  • Compelling Restitution

Housing, including nursing homes

Housing issues, including discrimination and home equity conversions

  • Nursing Homes As Housing

Nursing home issues including questions of patients' rights and nursing home quality Nursing home landlord-tenant rights Nursing home admission agreements Nursing home laws & regulations Nursing home privacy, security, etc.

  • Other

Low-income housing for the elderly

Section 8

Continuing care residences

Hospice residences

Insurance

including proof of claims, disputed coverage, unfair and decptive insurance practices such as discriminatory exclusion from coverage or actuarial miscalculation

Employment

Age Discrimination

Retirement

Retirement, including public and private retirement plans and benefits, survivor benefits and pension benefits

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