I just posted part 1 regarding the Caregiver Agreements I prepare when my client/caregiver sees me before the services are rendered, payments received, and the parent's entry into the nursing home. In situations when I do not have the opportunity to help the client before the services are rendered, payments received, and/or the parent's entry into the nursing home, I still have other ways to prevent MassHealth from forcing the child to pay the money back.
If it appears that the parent may return home and home care can resume, I can prepare the agreement I addressed in Part 1, and the caregiver can get paid weekly for work performed that week. If the parent will never return home, but payments of money or property have been made for that care, I can make a couple of legal arguments so the caregiver child can keep the money/property. I will likely have to have a "Fair Hearing" before a hearing officer in this situation because complex arguments need to be made.
Referring to a particular regulation, I can argue that the elder's payments to the caregiver were for valuable consideration, and not as a gift. As a further and separate argument pursuant to a different regulation, I can submit the case that the payments were transferred for a purpose other than to qualify for MassHealth. There may be additional arguments that can be made depending upon the specific facts in a particular matter.
In summary, the sooner I can meet with the caregiver and/or elder, the more choices I have to get the job done.
Wednesday, October 28, 2009
Hospital Seminar and questions
Last night (5:30-7:00) with Financial Planner Molly Keegan I did a presentation entitled, "Financial and Estate Planning for Women" at Cooley-Dickinson Hospital before 20 women. We showed five brief (90-120 sec.) films of five different women with different issues, answered questions and gave our advice. I believe it was interesting and helpful.
Many questions were asked, including the following:1. What is Medicaid Planning?
2. How do I get my elderly parents to see you so they can finally do their estate plan?
3. What is a Living Will?
4. How do I leave money to my charity?
5. What if I prepare my estate plan and move to a different state? Do I have to do a new plan?
6. How do I provide for my children from my first marriage, as well as provide for my new husband when my new husband has children from his first marriage?
7. How can same sex/unmarried couples set up legal protection upon certain occurrences such as death, disability, nursing home admission of the domestic partner?
The list goes on and on. I will address these and other issues in my future blog posts. You can ask me questions and I will do my best to answer them.
Tuesday, October 27, 2009
All adults need a will
I often receive calls asking if the caller is "old enough" to prepare a will. Any competent adult needs a will. What about a 20 year old who has no assets, spouse or children? I say, "What if the 20 year old was killed in an auto/motorcycle accident by another motorist who was at fault? What if the family of the 20 year old received a million dollars in the settlement?"
When someone dies without a will, the state writes it for the deceased person by use of the law of intestate succession, the family tree. In this case, each parent would receive $500,000. What if one of the parents hadn't seen his/her child since the child was two years old? In this situation, had the 20 year old permitted me to prepare his/her will, do you think my client would have wanted half a million dollars to go to the parent who deserted my client when he/she was a child? Adults of all ages need an estate plan.
When someone dies without a will, the state writes it for the deceased person by use of the law of intestate succession, the family tree. In this case, each parent would receive $500,000. What if one of the parents hadn't seen his/her child since the child was two years old? In this situation, had the 20 year old permitted me to prepare his/her will, do you think my client would have wanted half a million dollars to go to the parent who deserted my client when he/she was a child? Adults of all ages need an estate plan.
Caregiver Agreements
I frequently meet with clients who tell me something similar to this: "I have been taking care of my parent and receiving money over the last few years. Now my parent has just entered the nursing home and there is a house and $20,000 left. Since I am paying my parent's bills, I will have to pay the nursing home $8,000 a month until the money runs out and then apply for MassHealth (Medicaid). What about the money I've received over the years for taking care of my parent?" If nothing is done, all money paid to the child within the look-back period (the 5 year look-back period is phasing in and will be 5 years March, 2010) will be deemed a gift and must be paid to the nursing home.
This is an example of the value in planning ahead. Had I had the chance to speak to the child before the parent's entry into the nursing home, I would have recommended that I prepare a caregiver agreement, to be signed by the caregiver(s) and the parent, or the parent's agent if the parent is incompetent. The best plan: the parent's doctor or health care provider states in writing what services the parent requires to keep the parent at home. I prepare an agreement specifically listing those services, hours per week, and amount of pay. The work is not paid for until after the contract has been signed by both (all) parties. The caregiver keeps a log and receives payment every week for the exact hours worked. Because the money paid to the caregiver is considered income, income taxes must be paid for the services rendered. I draft the contract as an independent contractor agreement, not as an employee.
However, if I do not have the opportunity to help the client before entry into the nursing home, I still have other ways to prevent MassHealth from forcing the child to pay the money back. I will address this approach in a future blog.
This is an example of the value in planning ahead. Had I had the chance to speak to the child before the parent's entry into the nursing home, I would have recommended that I prepare a caregiver agreement, to be signed by the caregiver(s) and the parent, or the parent's agent if the parent is incompetent. The best plan: the parent's doctor or health care provider states in writing what services the parent requires to keep the parent at home. I prepare an agreement specifically listing those services, hours per week, and amount of pay. The work is not paid for until after the contract has been signed by both (all) parties. The caregiver keeps a log and receives payment every week for the exact hours worked. Because the money paid to the caregiver is considered income, income taxes must be paid for the services rendered. I draft the contract as an independent contractor agreement, not as an employee.
However, if I do not have the opportunity to help the client before entry into the nursing home, I still have other ways to prevent MassHealth from forcing the child to pay the money back. I will address this approach in a future blog.
Monday, October 26, 2009
My background
This is my first blog, ever. I've hardly read any other blogs, so your input is very important to me.
I've been an attorney since 1978, 31 years! I was first licensed in California in 1978, then in Michigan in 1983. When I moved to Massachusetts, I became licensed in Mass. in 1994. Currently, I am only licensed to practice law in Massachusetts.
When I first started out as an attorney, I did practically everything, and mostly as a solo attorney. I received vast experience, but the work was non-stop. As a criminal defense attorney, I've done murder jury trials, visited clients in prison, and defended clients facing serious and minor criminal offenses from all walks of life.
Over time, I only handled civil (non-criminal) cases. I tried complex civil cases in environmental law, fraud, and business litigation. On multiple occasions, I prosecuted civil trials lasting three weeks, interviewing and examining experts from a host of scientific fields.
Now, I have two terrific attorneys and excellent staff. We all work together as a team, combining our education and experience to provide the best care we can possibly provide for each client. We want our clients to keep returning to us for life! And refer their friends and relatives to us, as well.
Over the years I gradually narrowed my areas of practice. Now, my practice focuses primarily on elder law. No, you don't have to be an old attorney to be an elder law attorney. And, it doesn't mean my clients are all old. The concept of "elder law" confuses a lot of people.
Elder law includes estate planning, estate administration (probating an estate with or without a will), medicaid planning, nursing home issues, elder abuse, guardianships, and conservationships. I have had to evict adult children taking advantage of their frail and elderly clients. The list goes on and on.
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