Planning for Later

A long-term client of mine called to tell me that he had just learned that he had a terminal illness – it was a medical problem that appeared suddenly appeared. He was about 70 and his wife about the same. Their children were self-supporting adults, out of the house. Both he and his wife were retired – he was collecting Social Security and a pension. He had always handled the family finances. The house was paid off. His wife had a lot of local friends and many volunteer activities that she enjoyed. She was frantic and had become depressed, as she couldn’t stop thinking about the space in her future that would be so empty and how she would manage things. She was paralyzed with fright. When she thought about the future, all she could see was jumbled chaos.

The husband brought his wife with him to meet with me. We talked about the survivor’s benefit on his pension and the bump-up in Social Security that she would receive. We looked over the assets and showed her how they would transition to her ownership and would not be lost. We sketched out a plan of steps to be taken “when the time comes,”  and we reviewed and updated their powers of attorney, health care proxies and Wills. We talked about ways she could keep him comfortable at home at the end, and what benefits could help with that. We discussed hospice and when it would make sense to bring in that support. The husband dictated his wishes for his funeral arrangements, which were typed up for his signature. We also mapped out the budget  so that his wife could see that she could comfortably remain in the house “afterwards.”

By focusing on a set of specific decisions and steps in an orderly way, my client’s wife became less afraid for her future. Sad, yes, but less afraid and less worried. She felt more confident that as they began moving through this terrible transition, she would have a framework for decisions and would know how to approach each decision as it became necessary.

Careful planning can prevent a crisis. Call us for advice on elder care and end of life planning….. 732-382-6070

Long Term Care Insurance — It’s All about the Contract

If you purchased a long-term care insurance policy, (LTCI) make sure you keep that contract and the annual update notices in a safe, accessible  place and that you let your important persons know where they can find these papers. When it comes time that hands-on care, supervision and cueing are required, it will be necessary to scrutinize the contract to see just what conditions must be met to trigger the policy benefits. A Claim will have to be submitted with copious written proofs. medical records and opinions. No one has a crystal ball, but the stronger the evidence at the time the claim is submitted, the greater the likelihood that the claim will be approved so that benefits can start to flow.

A policy may say that the contract holder must require “substantial assistance in three or more of the Activities of Daily Living,” or perhaps two, or even four. The ADL’s are dressing/grooming, feeding, toileting, transfers/ambulation [with or without assistive devices], bathing, and continence. The policy holder’s needs could be the result of physical disability, or could be the result of severe cognitive impairment due to Alzheimers disease, Parkinsons disease or other dementias. Some policies cover in-home care; others only cover care in a skilled nursing facility (nursing home). The daily benefit is usually different depending on the setting. Some contracts require that in-home caregivers be licensed; others do not have that requirement. The length of the policy benefit is spelled out in the contract — five years? Lifetime? Only until a certain pool of benefit dollars is used up?

After the claim is filed, you can expect the insurance company to send out someone who will perform a functional assessment to see whether the criteria are met. As we have discussed in this space on the subject of applying for Medicaid (the PAS clinical screening) or arranging for in-home care services after Medicaid eligibility has been approved (interaction with the Case Manager from the Medicaid Managed Care Organization), self-advocacy and knowledge of the applicable standards are vital.

There is typically an elimination period such as sixty or ninety days once the claim is approved. Some policies then pay the benefit to the individual as a reimbursement, only after receiving additional proof each month that care was paid for in the prior month. This may require cooperation from the care provider, such as the nursing home or the assisted living facility or home care agency. Sometimes benefits can be assigned — some companies will pay the benefit to the facility or agency after receipt of a properly signed Assignment of Benefits. Other policies may just start paying benefits monthly after the benefits begin.

It’s all about the contract. The contract itself and information about the policy should be kept with your other important financial documents such as your power of attorney and list of assets, so that if the need arises, and your trusted person knows how to start.

For advice on elder care planning involving long-term care insurance benefits, and advice on claims issues, call us at ………. 732-382-6070

After the Wedding Bells Have Rung Again, Update your Estate Plan

It is surprising how often we hear of situations in which a person passed away unexpectedly or had a catastrophic accident or stoke, and various family members or good friends start trying to find out information or even start trying to gain access to assets without any authority to do so. Oftentimes, energy is fruitlessly spent before legal advice is obtained. Sometimes, tremendous fights ensue. These issues are bad enough when the individual has no spouse or no children  — there may be a certain group of nieces, nephews or cousins who believe they are the rightful heirs or the rightful decision-makers — but the issues can be magnified where there are  children from a prior relationship as well as a current spouse.

Once a person is divorced, any prior designation of their now ex-spouse as a fiduciary in a Will or Power of Attorney or Health Care proxy is deemed to be voided. In some circumstances, that can leave the individual without any fiduciary. Remarriage by itself doesn’t grant actual fiduciary authority to one spouse over the other. Signing a new set of estate planning documents is very important. The individual can specify who has the decision-making authority in the event of incapacity, and who will be the Executor of the Estate.  A carefully written set of documents will address any necessary interplay between the second spouse and the individual’s children. Are adult children entitled to continue to live in the marital home if their parent is now incapacitated or deceased? Are they required to pay expenses or rent? If the incapacitated parent was supporting adult children, is the Agent under Power of Attorney obligated to continue this pattern?  Many issues can be addressed through careful planning and signed legal documents.

If an individual becomes incapacitated and never signed any power of attorney, there may be a need for someone to pursue Guardianship to attain authority to make decisions and handle real property and other assets. At times, we have to dash into court with a petition for some emergency authority. In situations where there is a second spouse and children from a prior relationship, a guardianship action may become contested, leading to extensive and expensive litigation over who is entitled and best suited to be appointed as Guardian.

A spoken statement doesn’t create a Will. A spoken promise doesn’t create a power of attorney. A person’s belief that they were authorized to handle someone’s financial matters doesn’t translate into authority without a writing.

Thoughtful estate planning can go a long way to prevent crises and litigation, and thoughtful updating of estate plans on a regular basis — especially after a major life event such as marriage — can help ensure that your wishes will be carried out.

Call us about creating first time or updated estate plans .. 732-382-6070

 

Sometimes, Arbitration Clauses in Nursing Home Contracts aren’t Enforceable

It’s very common for nursing home and assisted living contracts to contain a section in which the applicant is asked to consent to arbitrate any dispute with the facility. By consenting to arbitration, the individual waives his or her right to file suit for damages or breach of contract, or other matters, in the court system. Lately, those contracts frequently have a statement that signing the arbitration clause is optional and that admission won’t be denied for failure to consent to arbitration. In 2010, in the case of Estate of Ruszala vs. Brookdale Living Communities, The New Jersey Superior Court, Appellate Division,  invalidated a portion of a statute that sought to make all arbitration clauses in nursing home contracts unenforceable (N.J.S.A. 30:13-8.1), but held that each case had to be examined on its facts because in a given case, certain provisions of a contract might have to be stricken.

In a recent case, a long-term care resident of a skilled nursing facility in New Jersey sued for damages based on alleged negligent health care. The facility filed a motion to dismiss the case because the plaintiff had signed an arbitration agreement as part of his application for admission. As of now, the decision is “not approved for publication,” which means it is not precedential and is only binding on the parties to that case. However, as with other non-published decisions that I have discussed in this space, the facts and analysis are interesting and informative and useful for the general public to know about. The case is called Ricciardi vs Abingdon Care and Rehabilitation Center et al. and Kindred Hospital.Ricciardi v Abington Care Center

The facts that were established in the trial court were that Mr. Ricciardi signed his application for admission; there were 12 pages; each was signed and the time was noted; the whole process took one minute; staff did not give him any useful explanation of the impact of signing the arbitration agreement; he was not given a copy of the arbitration clause page although he was given a copy of other pages; and although the arbitration clause page provided a five-day right to cancel, the facility deprived him of this right because he wasn’t given a copy of the page to retain and review. The trial Court denied the motion to enforce the arbitration agreement, finding that the plaintiff did not actually consent to arbitration, and the appellate division affirmed that decision.  The Court explained that “Any contractual waiver of rights, including arbitration provisions, must reflect that the parties have clearly and unambiguously agreed to the terms” and “must have full knowledge of their rights and show an intent to surrender those rights.”

Admission to skilled nursing facilities involves evaluation of intertwining issues of health care, residential rights, and financial obligations. Contracts can be confusing and obligations can be confusing. Elder care legal advice can be a very useful and protective part of the process.

Call us to review contracts and provide advice about care being provided in skilled nursing home settings .. 732-382-6070

LifeTown: a special downtown for individuals with special needs

An innovative community service for people with special needs was recently opened in Essex County called “LifeTown: The Jerry Gottesman Center” in Livingston. It’s like a mini-mall filled with shops such as a pet store, a book store, a bank, a movie theater and a food market, as well as  recreational venues including  a music studio, basketball court and more. Evidently it’s 53,000 square feet and is staffed by both professionals and volunteers through the Friendship Circle of New Jersey. Some of the businesses are independent businesses with their own employees. Friendship Circle participants have the opportunity to learn job skills as well as skills with handling money and shopping. There will be social activities, work activities and recreational activities, all designed for skill-building, socialization. One of the goals of the mission of Friendship Circle and LifeTown is “to fully integrate people with special needs into the community and society at large ” and to “simulate life in a safe and accessible environment.”

For information about participation in Friendship Circle, click here

Life care planning for family members with special needs requires forward-thinking, innovative strategies, Call us for help with your estate planning needs … 732-382-6070