Below is a selection of articles from our blog. You will find this collection very informative if you are planning for your future, the future of a loved one, or dealing with a current crisis.
Below is a selection of articles from our blog. You will find this collection very informative if you are planning for your future, the future of a loved one, or dealing with a current crisis.
Whether it’s an honor or a burden (or both), you have been appointed trustee of a trust. What responsibilities have been thrust upon you? How can you successfully carry them out?
Here are nine do’s and one don’t to get you started:
How independent you are often depends on how well you can function physically. While this is one of the best reasons to stay physically active, it’s not the only one. Here’s a list of eight reasons why you should make physical activity a priority in your daily life.
The best exercises to increase bone strength include weight-bearing exercises (like walking) and resistance exercises (like weight lifting). However this does not mean you have to become a competitive walker or body builder, just living an active lifestyle you will help your bones stay strong.
2. Increases your independence.
One of the main points of being active is to maintain your ability to function. Studies show that those who exercise over their lifetimes are more likely to avoid falls and disability as they age.
3. Increases your metabolism.
As strength training increases muscle mass, it also increases metabolism. One of the benefits of this is that your body uses more of the calories you take in because your resting metabolic rate increases, which leads to less body fat and easier weight control. Keeping yourself at a healthy weight will lower your risk for health problems. Remember that even being just a few pounds overweight can put you at higher risk for many health problems.
4. Reduces your risk for falls.
Physical activity reduces your risk for fall for two reasons. First, it lets you practice keeping balanced and reacting to things around you. Second, it can help prevent the natural decline of your muscles that help keep you steady.
5. Increases flexibility.
Doing exercises that require a full range of movement will help keep you flexible. Any kind of activity will produce results, so choose to walk instead of drive or rake the leaves in your lawn instead of using a blower.
6. Gives you a reason to socialize.
One of the best strategies for increasing your activity is to exercise in a group, so exercise can lead to new friends. For opportunities ask your friends, check your local senior center, or look at the bulletin boards in local health clubs for exercise groups for seniors.
7. Improves your mood.
Exercise is a good way to improve your mind. Studies show that exercise reduces depression, and has the ability to lift your self-esteem.
8. Physical activity helps your entire body.
As you age the body’s systems weaken, but much of it occurs because of a lack of physical activity. Exercise can slow this breakdown and help you continue to live well.
Remember: if you are thinking about increasing your daily activity level, be sure to talk to your doctor first. For more information about exercise and aging check out the Soundpath Health Wellness Library on www.SoundpathHealth.com.
Trust or Will?
New Considerations for the New Year
Copywright – 2012 Andrea Lee
In my practice, “Do I need a Trust or a Will?” is one of the most frequently asked questions. Generally, the answer is “it depends.” Both forms of Planning have pros and cons, and with the law changes coming into effect as of January 1, 2012, some of the benefits to having Trust have become even less persuasive.
The purpose of either a Will or a Revocable Living Trust is to pass your assets to your family at your death. Both accomplishes the job. Both have pluses and minuses. The most common “minus” cited for a Will is that a Will is Probated whereas a Revocable Living Trust is not. However, basing your decision whether to have a Will or a Trust simply on the fact that a Trust avoids Probate is too simplistic. It ignores the fact that, in Washington State, most of the work of a probate is not the court supervision involved, but rather the identification and selling of assets, the payment of debts, and the notice and distribution of assets to the correct beneficiaries and or heirs. Under the new Laws, that all still has to be done when you have a Trust. Additionally, prior to the law changes that go into effect January 1, 2012, the benefit of the Trust was that it could be kept rather private, and notice of the Trust did NOT have to be sent out to heirs and/or beneficiaries the Trust creators wanted kept uninformed. Under the new Trust provisions, some of the benefits of a Trust, such as less restrictive administrative process and notice requirements, are gone with the wind.
While there are many issues people must consider when deciding between a Trust or a Will, the focus of this article are the changes to the Trust Laws, and how they affect the ways we manage Trusts, and hence how they change our analysis when deciding whether or not to have a Trust or a simple Will.
All of the significant Law changes coming into effect involve the administration and notice requirements involving Trust. A quick summary of the significant changes are
(1) modifying the method for determining a trust situs and venue for proceedings; (2) requiring notice by trustees to beneficiaries; (3) allowing the courts to reform mistakes in trust documents; (4) making noncharitable trusts without ascertainable beneficiaries enforceable; and (5) codifying pre-existing common law. Most of my clients will not be effected by the Law changes with regards to situs and venue, statutes of limitations or noncharitable trust without ascertainable beneficiaries, those are changes that, while important to a very few, will never have to be considered by the majority of people.
In my opinion, the two most significant changes that will effect how we look at Trusts are the following:
RCW 11.97.010
- The statute regarding Notice, in my opinion, is the change that most effects my clients. Frequently, individuals want Trust in order to keep their affairs private. Maybe a client has three children, and they are not make eqaul distributions, or maybe one child’s funds are being held in Trust due to a drug or alcohol problem, and the parents did not want everyone to know how their assets are being distributed. Under the new laws, maintaing this privacy has become MUCH more difficult, and would require a significant amount of planning.
Additionally, now the beneficiary of a trust must be given notice of th Trust and copies to ALL interested parties, including contingent beneficiaries….discuss safe harbor trust, contingent beneficaires must receive notice of trust now… and be kept informed about the administration of the trust and of material facts necessary for them to protect their interest. Trustees must now provide reports to the interested parties.
RCW 11.98
- Distributing funds. Prior to the new laws, Trust distributions were very simple to make, and often involved the Trustee simply sending a check to each other beneficiaries. Now, a Plan to distribute funds must be sent via certified mail to the beneficairies, who have 30 days to object to the plan.
A change to both Trusts and Wills-
One significant change that affects both Trust and Wills is the following is to RCW 11.96A, which now allows the courts, through court order or party agreement, to reform and/or change Wills and Trusts to conform with intent of the Testator or Trustee (if the Trustee/Trustor is not able to make changes due to incapacity, death or other reasons). When a change is necessary, and if it can be proven with clear, cogent and convincing evidence, that the Will or Trust, as written, does not meet the Trustee or Trustor’s intent the Trust or Will can be changed. Previously we were occasionally able to modify and exisitng Trust using case law, however, the process should now be much simpler as the law support appropriate changes.
In a nutshell, the same issues that we previously discussed when choosing a Trust or a Will still have to be explored. However, if a person’s primary purpose of getting a Trust is to keep it private and to avoid some of the Notice and procedural responsibilities associated with a Will, then their planning may very well have to be revisited to ensure the privacy can still be maintained and to see if having a Trust offers any real protection from the administration associated with a Will.
What can you give an aging parent who has everything this Holiday Season? Try the “gift of paying attention”. At no cost to you, this simple and invaluable gift can bring much peace and joy to entire families. As your parents age it is inevitable that we’ll see changes in their health, their ability to care for themselves, and their cognition. For those of who see our parents infrequently, the holidays are an excellent time to pay attention and look for some of the changes that I, as a Geriatric Care Manager, often see in the aging population. Here are some light-hearted, but practical perspectives to adopt that I often find myself “coaching” children of aging parents on:
Social Security doesn’t just pay retirement benefits to retired workers; in some circumstances, it also provides benefits to a worker’s spouse or ex-spouse and to a deceased worker’s surviving spouse. Here are the ins and outs of spouse and survivor benefits.
Spousal Benefits
Spouses are entitled to benefits if the marriage lasted at least 10 years. A spouse is entitled to an amount equal to one-half of the worker’s full retirement benefit. To receive this benefit, you must be at your full retirement age or caring for a child who is under 16 years old. In addition, your spouse must have filed for Social Security retirement benefits even if he or she isn’t receiving them.
If you could receive more from Social Security based on your own earnings record than through the spousal benefit, the Social Security Administration will automatically provide you with the larger benefit. If you have reached your full retirement age, you may also elect to receive spousal benefits and delay taking your benefits, allowing your own delayed retirement credits to accrue, and switch to your own benefit at a later date. However, you cannot elect to receive spousal benefits below your retirement age and later switch to your own benefits.
If you begin collecting your spousal benefit before your full retirement age, your spousal benefit will be permanently reduced. But if your spouse retires early, but you wait until your full retirement age, you will still receive benefits based on one-half of his or her full retirement benefit.
For more from the Social Security Administration on spousal benefits, click here.
Divorced spouses
An ex-spouse is also entitled to receive one half of the worker’s full retirement benefit as long as the marriage lasted at least 10 years. Unlike a current spouse, a divorced spouse can begin receiving benefits even before the worker has applied for benefits. The worker must be at least 62 years old and the divorce must have been final for at least two years.
For more from the Social Security Administration on qualifying for divorced spouse benefits, click here.
Survivor Benefits
If you are a surviving spouse at full retirement age, you are entitled to the worker’s full retirement benefits. If the worker delayed retirement, the survivor’s benefit will be higher. Survivors are entitled to benefits even if they are divorced as long as they had been married for at least 10 years. If you file for benefits before you are over age 60, but below full retirement age, you will receive a reduced percentage of the worker’s benefits. Surviving spouses who are younger than 60 receive benefits only in limited circumstances, such as cases of disability or caring for a disabled child.
For more from the Social Security Administration on the requirements for survivor benefits, click here.
In October, Medicare beneficiary David P. (not his real name), was shocked to see a charge of more than $1,000 on his credit card statement. The charge was for the complete cost of renting a machine he needed to help him recover from knee replacement surgery. The equipment is covered by Medicare, so Mr. P. thought he would be responsible only for his 20 percent co-payment.
But it turns out that the equipment supplier who rented him the machine never informed him that it is not a registered Medicare provider and that therefore Mr. P. may be responsible for the full cost of the rental.
“It is a problem that beneficiaries often do not know that they are using a non-participating supplier,” says Alfred J. Chiplin, Senior Policy Attorney at the Center for Medicare Advocacy and co-author of The Medicare Handbook (Wolters Kluwer).
The good news is that Chiplin says a new Medicare program that has been launched in a few areas of the country will keep people like Mr. P. from unwittingly being liable for the full cost of such “durable medical equipment (DME),” which includes oxygen equipment, wheelchairs, walkers, and similar devices.
In the few areas of the country with the new program, which is called the “Medicare DMEPOS Competitive Bidding Program,” Medicare beneficiaries who expect any reimbursement may rent or buy certain durable medical equipment, prosthetics, orthotics, and supplies (DMEPOS) only from suppliers who contract with Medicare. In addition, non-contracting suppliers are required to tell Medicare beneficiaries that they don’t work with Medicare and the beneficiaries must sign a waiver form stating they are aware of this. If the supplier fails to do this, the beneficiary is not liable for the charge.
Chiplin states that equipment suppliers in the DMEPOS program areas are getting better at providing Medicare beneficiaries with the required notice that they are not contracting providers, and he says Medicare is stepping up its fraud and sanctions activity. (For more on the DMEPOS program, click here. To see if your zip code is in a coverage area, click here.)
Seek Medicare Reimbursement Anyway
But in the vast majority of the country not currently covered by the DMEPOS program, it is unclear whether suppliers who don’t work with Medicare are under any obligation to alert Medicare beneficiaries of this fact. The best defense, then, is for beneficiaries to always make certain the supplier has a relationship with Medicare – something Mr. P. had no idea he should do.
If you are caught in the situation Mr. P. found himself in, you can submit your bill from the supplier and seek as much reimbursement as you can get, Chiplin says. (Mr. P. is still awaiting word from Medicare.)
“Once the DMEPOS program is fully implemented, beneficiaries should experience a greater reduction in DME out-of-pocket expenses as they will be required to use certified and registered DMEPOS providers in order to obtain Medicare-covered items,” Chiplin says.
“It’s always best for beneficiaries to use certified suppliers and those who are Medicare participating suppliers,” Chiplin counsels.
When one family member becomes a caregiver for another, it”s important to put in writing the terms of the arrangement, according to elder law attorneys interviewed by The Cincinnati Enquirer.
AARP estimates that more than 20 million Americans currently care for ill parents, other relatives or friends. Problems can arise if the caregiving arrangement is not clear to all involved. For example, a caregiver may be providing care without compensation, counting on an inheritance that never materializes.
A formal caregiver contract can outline the responsibilities of a caregiver, and specify the payment he will receive for services rendered and expenses, the article states. A contract ensures that the cost of care is paid at the time it is received and is not left for family members to wrangle over as part of a later division of assets.
Such a contract can also help the person receiving the care transfer assets as a way of qualifying for Medicaid. Payments for contracted services are not viewed as gifts to the care-giving relative, but reimbursement checks without a contract to support them may be.
But the article stresses that such contracts should be drafted by an attorney who specializes in elder law and who can customize the contract terms to the client”s situation. The article quotes ElderLawAnswers member Gregory S. French, a Cincinnati elder law attorney, who says: “My experience has been that assisting communication among family members — getting them on the same page — is one of the most important things an attorney can do to help a family plan for this sort of situation.”
The article suggests that a good caregiver contract also should:
To read the full article in the Cincinnati Enquirier, go to: www.enquirer.com/editions/2003/08/10/biz_fineprint10.html click here.
Seven Medicare patients have filed a class action lawsuit challenging a Medicare policy that allows hospitals to place patients under observation for days on end rather than actually admitting them. If these patients then move to a nursing home, they are not eligible for Medicare coverage of the first part of their nursing home stay, costing them or their families thousands of dollars.
Medicare covers nursing home stays entirely for the first 20 days, but only if the patient was first admitted to a hospital as an inpatient for at least three days. In part due to pressure from Medicare to reduce costly inpatient stays, hospitals are increasingly not admitting patients but rather placing them on “observation status” to determine whether they should be admitted.
Although according to Medicare guidelines it should take no more than 24 to 48 hours to make this determination, in reality hospitals sometimes keep patients under observation for up to a week. If the patient moves to a nursing home after being “released,” the patient must pick up the tab for the nursing home stay — Medicare will pay none of it. The bills can run between $200 and $500 a day.
There is little that patients who know they have been placed in observation status can do because they haven’t been refused benefits. Medicare is still paying for their hospital stay, although on an outpatient basis.
“There’s no official appeal,” says Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “Medicare has not denied coverage. You’re in no man’s land.”
More and more elderly are finding themselves temporary residents of this no man’s land. Medicare claims for observation care rose from 828,000 in 2006 to more than 1.1 million in 2009, and claims for observation care that lasted more than 48 hours tripled to 83,183.
Bipartisan bills in Congress that would allow for the time patients spend in the hospital under observation status to count toward Medicare’s three-day hospital stay requirement have gone nowhere. Believing they had no other options, and with harm to beneficiaries and their families continuing, and The Center for Medicare Advocacy and the National Senior Citizens Law Center filed the lawsuit.
The case, Bagnall v. Sebelius (No. 3:11-cv-01703, D. Conn), filed November 3, 2011, on behalf of seven individual Medicare beneficiaries who represent a nationwide class, argues that the use of observation status violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the Constitution.
“The complaint specifically requests that beneficiaries not be put on observation status, but an alternative remedy would be to treat observation status as covered under Part A,” the Center’s Director of Litigation, Gill Deford, told ElderLawAnswers. ”A secondary goal is to ensure notice and hearing rights as long as they continue to put people on observation status and cover it under Part B. The immediate remedy would be to require notice and the right to challenge the placement on observation status.”
In a press release announcing the lawsuit, one of the plaintiffs, Lee Barrows, described her husband’s stay in a Connecticut hospital.
“After five days of treatment in the hospital, my husband’s neurologist, physician and social worker ushered me into the hallway to tell me that my husband was never admitted. I was stunned with disbelief and tearfully blurted out that I would fight this,” said Mrs. Barrows. “His doctors then indicated that this happens once or twice a week.”
The cost of long-term care continues its upward climb, according to the 2011 MetLife Market Survey of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs. Private room nursing home rates rose 4.4 percent to $87,235 a year or $239 a day, while assisted living facility costs jumped 5.6 percent on average to $41,724 a year or $3,477 a month.
After leveling off last year, the cost of adult day care services went up by 4.5 percent to $70 per day. But the average cost of home health aides and homemaker/companion service rates remained unchanged at $21 and $19 per hour, respectively.
The survey also reports on the cost of a semi-private room in a nursing home, which also increased 4.4 percent to $214 a day, or $78,110 a year. The cost of a semi-private room in an Alzheimer’s wing rose from an average of $75,190 to $81,030 annually.
Once again, the highest rates for a private nursing home room in 2011 were found in Alaska, where the average cost dropped slightly from $687 a day to $655 a day. The lowest rates were found in Louisiana (with the exception of Baton Rouge and the Shreveport area), at and average of $141 a day.
The cost of assisted living was the highest in the Washington, D.C., area, at $5,757 a month and the lowest in Arkansas (except for Little Rock) at $2,156 a month. Average home health care aide services ranged from a high of $34 an hour in Rochester, Minnesota, to $14 and hour in the Shreveport area of Louisana. Adult day care services were highest in Vermont at an average of $148 a day and lowest in the Montgomery, Alabama, area, at $29 a day, a $2 drop from 2010.
For the full 2011 report, including listings of average long-term care costs in selected cities, click here.
Seven Medicare patients have filed a class action lawsuit challenging a Medicare policy that allows hospitals to place patients under observation for days on end rather than actually admitting them. If these patients then move to a nursing home, they are not eligible for Medicare coverage of the first part of their nursing home stay, costing them or their families thousands of dollars.
Medicare covers nursing home stays entirely for the first 20 days, but only if the patient was first admitted to a hospital as an inpatient for at least three days. In part due to pressure from Medicare to reduce costly inpatient stays, hospitals are increasingly not admitting patients but rather placing them on “observation status” to determine whether they should be admitted.
Although according to Medicare guidelines it should take no more than 24 to 48 hours to make this determination, in reality hospitals sometimes keep patients under observation for up to a week. If the patient moves to a nursing home after being “released,” the patient must pick up the tab for the nursing home stay — Medicare will pay none of it. The bills can run between $200 and $500 a day.
There is little that patients who know they have been placed in observation status can do because they haven’t been refused benefits. Medicare is still paying for their hospital stay, although on an outpatient basis.
“There’s no official appeal,” says Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “Medicare has not denied coverage. You’re in no man’s land.”
More and more elderly are finding themselves temporary residents of this no man’s land. Medicare claims for observation care rose from 828,000 in 2006 to more than 1.1 million in 2009, and claims for observation care that lasted more than 48 hours tripled to 83,183.
Bipartisan bills in Congress that would allow for the time patients spend in the hospital under observation status to count toward Medicare’s three-day hospital stay requirement have gone nowhere. Believing they had no other options, and with harm to beneficiaries and their families continuing, and The Center for Medicare Advocacy and the National Senior Citizens Law Center filed the lawsuit.
The case, Bagnall v. Sebelius (No. 3:11-cv-01703, D. Conn), filed November 3, 2011, on behalf of seven individual Medicare beneficiaries who represent a nationwide class, argues that the use of observation status violates the Medicare Act, the Freedom of Information Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment to the Constitution. The lawsuit asks that when hospitals place Medicare a beneficiaries in observation status for more than a day or so they notify the patient that their stay is not being covered by Medicare Part A.
In a press release announcing the lawsuit, one of the plaintiffs, Lee Barrows, described her husband’s stay in a Connecticut hospital.
“After five days of treatment in the hospital, my husband’s neurologist, physician and social worker ushered me into the hallway to tell me that my husband was never admitted. I was stunned with disbelief and tearfully blurted out that I would fight this,” said Mrs. Barrows. “His doctors then indicated that this happens once or twice a week.”
For more information about the lawsuit from the Center for Medicare Advocacy, click here.