Behavioral Therapy Techniques Show Promise for Alzheimers’ Patients

If you are caring for a person with Alzheimers’ dementia, you are probably seeing a number of behavioral changes that are difficult to understand and challenging to respond to. These are sometimes called “neuropsychiatric symptoms,” and they span the spectrum from apathy and depression to wandering, disinhibition, irritable verbal onslaughts, agitated pacing, and hallucinations. Physicians sometimes have success in managing these symptoms by prescribing  medications to address anxiety, restlessness/agitation or psychosis. Studies are ongoing and there’s an excellent article about them by Jeffrey L. Cummings, M.D. in the Spring, 2016 issue of  AFA Care Quarterly.

Non-pharmacologic  interventions are the province of behavioral therapy. Caregivers can learn what triggers an agitated response and can avoid those triggers; they can learn to engage the patient in activities which increase socialization and stimulation while avoiding an increase in the patient’s confusion or distress. Each patient is of course unique, and a caregiver would be wise to keep notes of behavioral changes, stimuli and triggers, as well as what responses seem effective and which just made things worse. This is crucial information for the physician, as well as for other people who will be caring for the individual.

If your loved one needs to be placed in a nursing home, a full medical report is requested and it is important to discuss these behavioral issues as you work with the staff to develop the individualized care plan. The Nursing Home Resident’s Bill of Rights and federal Medicare and Medicaid laws require a skilled nursing facility to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.” See 42 USC 1395i-3(b). It has to be an individualized plan. You will be helping the staff to do the best job for your loved one if you share with them what you know about him or her.

We advocate for nursing home residents in care planning meetings. For elder care advice and representation, call us at … 732-382-6070

Medicaid applicant gets penalty period for cash transactions

Followers of this blog know that if a person applies for Medicaid to pay for nursing home care (or assisted living or home care), they have to provide five years’ of financial records and prove to the agency just what they spent every dollar on during the five year look-back period which immediately precedes the application. If the applicant can’t  prove that the dollars were spent on himself or herself, the agency presumes that the money was given away (“gifted” or “transferred.”) That in turn raises the presumption that the purpose of the gift was to qualify for Medicaid. And that in turn will usually result in a transfer penalty period. Medicaid won’t pay for the care during a penalty period.

This is an overwhelming challenge for most people. Although the general burden of proof in administrative agency cases is “prove by the mere preponderance of the competent evidence,” the burden on the applicant in Medicaid cases is “convincing evidence.” It’s not quite clear just what that means. The standard of proof in criminal cases is “beyond a reasonable doubt,” and the standard in court cases such as guardianship, Will contests and trust disputes is generally “clear and convincing evidence,” which is some place between the criminal standard and the administrative standard. In a new decision by our Appellate Division, the court sustained the agency’s finding that the applicant had failed to provide convincing evidence that the funds were spent and not gifted. N.K. vs. Div. of Med. Assistance & Health Services, July 19, 2016 (Sppellate Div.).

The applicant, N.K., lived in the community with a home health aide. She said that she paid the aide $1,000 a week [not an unusual wage for that work]. She had withdrawn $69,200 in cash from her checking account over the course of the look-back period, and could not prove just how she spent her money. As a result, a 7 month, ten day penalty period was imposed.

Five years is a long time, and for elderly individuals living in the community with a cash lifestyle, it may be impossible to prove just what they spent their dollars on. They go to the store; they go out for dinner or a movie or a show; they pay for a car repair; maybe they take out a hundred dollars and keep it in the car to pay tolls with. The person who is developing Alzheimers dementia may be prone to discarding all stray papers. The Medicaid applications are particularly problematic when aides are paid in cash with no records or receipts, or when a child pays for everything out of his or her own account and then takes regular reimbursements without saving each receipt. The Agency regards every transaction with suspicion.

When entering that phase of life where the need for nursing home care is a distinct possibility — however one hopes to avoid it — you need to handle the financial arrangements carefully, always thinking about how you will prove that you have been spending, and not gifting, your funds.

Call us to prepare and file your Medicaid application, or for asset protection planning, or to represent you on an appeal of a Medicaid penalty …. 732-382-6070

When the caregiving ends, new problems to tackle as Executor

In our legal practice, we advise  many family caregivers who are managing and supporting the lives of their frail loved ones, and  we also advise executors in the administration of estates. Very often, the person who was our client in their role of caregiver is now the client in the role of executor. It’s a very tender time when that transition occurs.

They  may have spent years involved with their parent who  had dementia or chronic illness, and the client’s life has been intertwined with the parent’s on a day to day basis. It’s been an emotional roller coaster for several years. The sense of self, role and identity have been strongly defined by the responsibilities of the caregiving. In these situations, the loss of the parent often leaves a gaping void that makes them feel as if they are drowning. They have trouble managing their day to day life because the focus of their activity is gone. There is a deep grieving process. They may have become isolated. And now, other family members are expecting them to jump and handle all  the dry and technical tasks of wrapping up the estate and distributing the money.

The challenge is that the executor has duties under the law to marshall the assets, resolve or pay the creditors, and distribute the estate in a reasonable period of time. There may be ambiguities in the Will that require court action to resolve. It may be that a beneficiary is disabled and a trust has to be established for them. It’s a big job and there can be serious repercussions when the job isn’t done.

There is help available. The National Family Caregivers Association has a Bereavement Program that could be of great use to someone caught in this situation. Ask for their article “Who am I Now that I am not a Caregiver?” Check out this website at AARP, Certain local family counselling services may be specially designed to help you with this unique issue, and enable you to start moving ahead, one step at a time..

Call us for advice and assistance with estate administration, probate and executor work … 732-382-6070

A disinherited spouse could have a medicaid problem

When a person applies for Medicaid benefits, a five-year look back is done by the county board of social services  to see if the applicant had given away any assets that they owned or to which they were entitled. If that occurred, it’s referred to as a “transfer of assets” or “uncompensated transfer of assets,” and the result will be a penalty period in which the person cannot receive Medicaid payments. This causes substantial problems for people in nursing homes or assisted living facilities, because the application isn’t filed until they are out of assets.

What happens if the Medicaid recipient is married and their community spouse dies? Or the applicant was widowed within the past five years? The question will still be whether the person had given away any assets that they owned or to which they were entitled. What happens if the community spouse signed a Will that left nothing for the Medicaid recipient, or put all their assets in joint names so that the Medicaid recipient inherits nothing from them?

In the Medicaid transfer of assets regulations at N.J.A.C. 10:71-4.10.b.3, a “transfer” is defined as including “failure to take action” to obtain assets, such as ” waiving the right to receive an inheritance, including spousal elective shares pursuant to N.J.S.A. 3B:8-10.” The Appellate Division decision in the case of I.G. v. Dep’t of Human Services (2006),  held that the widower’s failure to make a claim for the elective share was an uncompensated transfer of assets that caused a transfer penalty.

So if the deceased leaves nothing to the spouse who’s on Medicaid, the Medicaid recipient will be expected to assert a  “claim” for the elective share or risk losing benefits for a period of time. Under the law, the claim is asserted by filing a court action in the Chancery Division, Probate Part. The applicant would need an attorney. Assuming the surviving spouse is actually legally entitled to a share, the method to calculate the elective share and the  formula to calculate the amount due to the individual to satisfy the share is complicated. See N.J.S.A. 3B:8-1 to 8-19. For example, the calculations take into account assets that the survivor receives as a result of the death (such as a pension) and assets that are passing to someone else by way of joint ownership. The elective share starts with one-third of the augmented estate, but the calculation doesn’t stop there.

In some situations, our clients were told by Medicaid agencies that there would be a transfer penalty because the applicant/recipient didn’t receive “one third of the estate.” In other situations, the executor of the estate came to us, trying to figure out whether the estate was obligated to even pay an elective share. The issues aren’t simple, but you need to consider them. Many community spouses have “heard” that they should make a new Will disinheriting the spouse who has to move to the nursing home. The reality is, though, that disinheriting the spouse will likely cause legal problems for the person who is applying for or receiving Medicaid.

Call us about any aspect of Medicaid eligibility planning, applications and appeals… 732-382-6070


Family caregivers and decisionmakers in the complex care of dementia patients

Tha AARP and the National Alliance for Caregiving report that there are 40 million Americans taking care of family members with dementia such as Alzheimer’s Disease, cancer, and other debilitating chronic diseases, or physical disabilities, and that 25% of the caregivers are under 35 years old. The medical issues can be complex. There can be myriad medications to manage and the side effects can impact the patient’s cognitive ability, response time and behaviors. The family caregiver needs to be companion, advocate, assessor of unusual clinical responses, emergency manager, monitor of symptoms, transportation provider, and assistant for decision-making. They may or may not have received specific training in the care the patient requires. Should the caregiver also have authority to actually make decisions on behalf of the patient? Maybe yes, maybe no. It depends on the circumstances.

The line between the work of caregiving and the authority for decisions can get blurry. It’s important to discuss this subject when preparing powers of attorney.  At times, one child is given authority as Power of Attorney and Health Care Representative, and then also moves in and becomes the 24/7 caregiver when the parent can no longer safely live on their own. If the same person is responsible for all caregiving and all financial matters, it can be truly overwhelming and there could be a loss of objectivity.When a person requires 24/7 care and a devoted family member is the full-time caregiver, expanding the team and  dividing up the responsibilities can go a long way to make the job more manageable, and assure that the whole picture is being seen. Perhaps one person should have authority over the assets, income, bills and contracts, and another person should have responsibility for health care decision-making. Sometimes the person providing the live-in care should be the health care decision-maker, but not necessarily.

To guarantee broader input and communication, a patient may want to divide up the roles. But again, this is simply not always possible. The family may be small, or most of the family may be far away, or there may be other family dynamics in play.

There are ways to ensure collaboration between caregiver and the designated agents. For example, the financial Power of Attorney and the health care proxy or advance directive documents documents can obligate each designated agent to  share information  with the other and to consult with each other. The person who is the general agent under the power of attorney could be given the authority to delegate some power to the person who is the live-in caregiver so that they can manage some reasonable size bank account on a day to day basis in case there’s a need to buy things. Or they can be given authority to utilize  a debit card on the patient’s bank account with a certain limit.

Another idea is that the financial power of attorney document can expressly allow a family member to be hired as a live-in caregiver, and can direct the Agent to pay a wage that’s in line with similar occupations. When caregiving is paid for, it eases the economic pressures on the care giver, but it does raise other issues such as wage & hour laws and potential Medicaid scrutiny if the parent runs out of money within 5 years and applies for Medicaid benefits.

No matter what, either the patient or their authorized agent may want to sign HIPPA release forms for certain purposes so that the caregiver can access the relevant health care information that’s needed for them to do their job.

For legal advice on elder care planning, caregiver employment, and estate planning, call us at … 732-382-6070.