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).
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.
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.
See generally Elder law (U.S.), Elder Law Attorneys
See generally Elder law (U.S.), Assessing Professional Competence
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.
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.
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.
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)
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
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
130 CMR Chapters 515 to 610
Interaction between Medicaid and Medicare (100 days of nursing home, 90 days out of hospital or nursing home between admissions)
Medicare claims and appeals
Family (legal obligation of grown children to support needy parents)
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.
Massachusetts is one of three states which have not passed legislation recognizing living wills.
—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.
including duties of attorneys and agents having power of attorney, trustees, executors and administrators, physicians and health care proxies, etc.
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
Planning & paying for support of family members
Caregiver wellbeing and respite Support of spouse Support of minor children Support of disabled children Support of needy parents
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.
Effecting final wishes
Elements of a valid trust
Principles of equity
Uniform Trust Code (not enacted in Mass.)
Enforcement and reformation
Special Needs Trusts
Trusts for benefit of persons with disabilities
Special purpose trusts
Probate, including administration and litigation, probate of estates in Massachusetts, and multi-state probate situations
-To conserve assets -To make assets productive -To discharge trust -To account to beneficiaries
Property transactions, including life estates, gifts
Real property transactions
Medicare and Medicaid Liens
Transfer of assets
Creditor protection of IRAs
Real Estate and Home Equity Conversions
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
Sheltering assets when seeking Medicaid
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
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 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.
Prevent nursing home abuse and neglect
Recognize nursing home abuse and neglect
Stop nursing home abuse and neglect
qui tam for Medicaid fraud
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.
Low-income housing for the elderly
Continuing care residences