Find your parents’ Long-Term Care Policies so you can help them plan

There is plenty of debate about the benefits and drawbacks of buying long-term care insurance.  The premiums are expensive for a person in their 70’s who is first considering a purchase. Potential buyers worry that they will pay premiums for years and never have to use the policy. The industry has been in flux and there aren’t too many carriers around. What I do know is that over the years, long-term care insurance policies have been a lifesaver for many of my clients, particularly if the policy pays for in-home care. The annual premium cost has always been well less than a single month in a nursing home. So LTC policies can be an important component of long-range planning for a person who will eventually enter what I like to call “the elder zone.”

All too often, the need for 24/7 care drops on the doorstep when there’s been no prior planning, and concerned family members are faced with making arrangements without any good information. Elsewhere on this Blog I’ve written about strategies such as assembling the team, compiling your financial & insurance data,  and getting legal help for an updated estate plan and power of attorney. Today I suggest that you dig out those long-term care policies from wherever they are being stashed, read them and get familiar with what the policies provide. Contact the company for an updated statement of benefits. What’s the daily rate? Compare that to the anticipated cost of care  in a nursing home ($350+ in most places) or at home ($165 /day or more). Ask questions about what it takes to start the typical 90-day elimination period — what documentation is required? Can it start when the patient enters the hospital if s/he will then transition to long-term care? Can it start if the patient has already had an in-home Aide who was paid off the books? Find out if premium payments can be switched to auto-debit from the checking account, to avoid the risk of lapse if the policy-owner starts forgetting to pay bills.

The Medicaid home care program under MLTSS/HCBS  does not provide 24/7 full-time care. Knowing what the benefits are in your parent’s  long term care insurance policy can make a huge difference in how you approach the discharge planning from hospital or “rehab” back home for senior planning. It may be the ticket to asset preservation.

Call us for advice about long-term care planning and asset protection for peace of mind …. 732-382-6070

Garn-St. Germaine Act protects families against certain mortgage acceleration

Home mortgages typically have a mortgage acceleration clause, called a “due on sale” clause. This is a clause that says that the mortgage becomes due and payable if the property is sold or transferred to another individual without the lender’s prior written consent. There is a federal law that prevents lenders from applying that clause when the homeowner transfers their property to their spouse or children. It’s known as the Garn -St.Germaine Depository Institutions Act of 1982, which is in the U.S. Code of laws at 12 USC.1701j.

Section d. specifies the situations in which a lender may not enforce the due-on-sale clause. The exemptions that are most relevant for elder law and estate planning are these:

(d) Exemption of specified transfers or dispositions  …. (3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety; (4) the granting of a leasehold interest of three years or less not containing an option to purchase; (5) a transfer to a relative resulting from the death of a borrower; (6) a transfer where the spouse or children of the borrower become an owner of the property; (7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property;  (8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property …. “

There are times that transferring the ownership of residential property makes good sense for asset protection purposes. No transfer should be made without legal advice, as there are so many considerations to take into account. For example, can the new owner in the family pay the mortgage? if not, who will pay it, and is that person going to be making ongoing gifts to the new homeowner, or is there some other legal relationship at play? But it’s good to know that there is this protection available when there’s a mortgage on the property. Preferably, the Deed itself should make reference to the mortgage that’s on the property at time of transfer.

Call us for advice on asset preservation planning and real estate transfers … 732-382-6070

Thwarted by HIPPA rules? Persevere.

Protected health information can’t be  disclosed to anyone but the patient or the patient’s authorized recipients.  If you are the court-appointed Guardian of an incapacitated person, or you are a designated Agent under a Health Care Proxy or Health Care Power of Attorney, you may have encountered roadblocks in trying to get access to the records of the person you are acting for.  These protections of confidentiality were always a matter of common law but were explicitly set down in the Health Insurance Protection and Portability Act of 1996, usually called “the HIPPA Law.” The law allows the patient to sign a HIPPA-compliant records release. The law also explicitly states that a Guardian is an authorized recipient, and that the designated Health Care Proxy/ Agent/ Representative is an authorized recipient. Nonetheless, even if you are authorized, you may hit roadblocks getting access to the medical records of the incapacitated person.

I encountered this recently and I have to say it was just maddening. I have been  the Legal Guardian [of Person and Property] for a certain individual for about 15 years. Two months ago he had a serious injury and was admitted to the hospital. The patient has been in that hospital before and I thought that my guardianship record had been placed on the chart. Arriving at the hospital on the weekend without my guardianship certificate, I discovered that they could not check the prior charts, and of course would give me no information. At 7:30 Monday morning, I faxed up the guardianship certificate with a request that the nurse or doctor call me. By mid-day  I had heard nothing and when I called in I was told that those faxes go to a central fax room and don’t get delivered right away [though I had faxed it to the direct line at the nurses’ station]. This whole process had to be repeated and finally a day later I was able to have a telephone meeting with the treatment team. Then he was back in the hospital, and on arrival at the hospital a few mornings later the floor nurse wouldn’t allow me to review the patient’s chart, citing HIPPA, and I had to again provide the certificate because they still hadn’t actually entered this critical information into the patient’s chart.   Even with that it took several conversations until the nurse was persuaded that I had authority to not only see the chart but to make the decisions and sign the Consents to Treatment. When the patient was discharged to an outside  subacute facility, the hospital didn’t provide this guardianship information with the transfer paperwork and I had to start it all over again. When he went back to the hospital, a new chart was being created and again, they found no record of my guardian status. Start again.

The usual Health Care Power of Attorney appoints a decision-maker to make the medical decisions if the doctors determine that the patient is incapable of giving informed consent. A good document will also say that its effectiveness is not diminished by the mere passage of time, and it will also grant HIPPA access to information. However, if the patient isn’t incapacitated, the patient may still have to sign a new HIPPA authorization in order for the treatment team to be willing to share information with you. That wouldn’t install the person as surrogate decision-maker at that point, but it would give them access to necessary information in order to be able to assist the patient to make decisions about treatment. Here is a downloadable PDF of a HIPPA-compliant form which we provide to all of our estate planning clients. HIPAA FORM.

The moral of this story is: (1) always bring the original guardianship certificate or health care power of attorney to the health care facility with you, (2) get an updated guardianship certificate one a year so that it is reasonably current; (3) if you are the health care proxy but your person isn’t mentally incapacitated, ask him or her to sign a medical release authorization and place it in the chart so that you can have access to information.

Call us for legal advice concerning the appointment of health care representatives and functioning as a guardian or power of attorney ….. 732-382-6070

Can you Change a Will without a Writing?

I cannot tell you how many times over the years a client has told me that despite what is written in the Last Will and Testament of their parent or grandparent or Aunt or Uncle, “s/he said that s/he was leaving the house to X,” or “she wanted Y to get more because he moved in and was taking care of her at the end” or “she gave a lot of money to Z and intended him to pay it back from his share of the estate” or “she lent money to X but said the loan was forgiven” or “she left it to J. but told him he had to hold it for K.”   In each of these situations of course, the deceased person never put anything like that into their Last Will and Testament, and never signed a new Will or even a Codicil (formal amendment) to the existing will. Similarly, I also hear expressions of surprise when people read what is actually written in the only Will that was found — “She told everyone she had changed it!!”

Can you change your Will without a writing? New Jersey statutes suggest that the answer is “no.” I was actually aware of a case in court in New Jersey years ago in which the deceased had never changed her signed Will but a family member insisted that it had been revoked by a series of oral statements allegedly expressed to different people. I don’t know how that theory worked out for him. No doubt the litigation cost the estate a great deal of money. Also I litigated a case in which one of the testator’s children claimed that her mother had revoked a Will and Trust by various oral statements. That lawsuit was dismissed on summary judgment.

A Last Will and Testament is a written document that is signed, dated and witnessed. It’s called “Last,” because if there is a presumption that if no writing was signed later on and the document still exists, the deceased person intended it to be the last will and testament. The law presumes that the last document supercedes all prior Wills. In fact, just to be safe, many — perhaps most — Wills expressly say that “this document replaces all prior Wills.”

How can a Will be revoked? There either has to be a writing [signed etc.] that amends or revokes the Will, or there has to be some affirmative and intentional act of revocation. The statute says: “By the performance of a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subsection, “revocatory act on the will” includes burning, tearing canceling, obliterating or destroying the will or any part of it. A burning, tearing or cancelling is a “revocatory act on the will,” whether or not the burn, tear, or cancellation touched any of the words on the will.”  Some old cases dealt with accidental destruction by fire, or additional papers found with writing on them that seem to amend a Will but it isn’t quite certain.  New Jersey has a statute concerning documents that don’t meet the specific requirements to be treated as a “Will,” and those documents are referred to as “a writing intended to be a Will.” But there always has to be a “document or writing.” There is a rational reason for these statutes. It is only when there is a writing that was reviewed by and signed by the deceased person that there can be reasonable certainty of what his or her last intentions were. Without a writing, it becomes a battle between interested parties who have a motive to either invent the alleged oral statements or to deny that the claimed statements were ever made (especially if they say that no one else was present when the alleged statements were made). With a writing, it not only speaks for itself, but there is often extrinsic evidence to authenticate the making and signing of the document.

Forewarned is forearmed. If it has been years since your parents reviewed their estate plan documents — or if they never bothered to sign a Will — this would be a good time to remind them to take care of it. Of course, getting your intentions in writing and updating your own plan is always a good idea.

Call us about senior care and estate planning with wills and trusts … 732-382-6070

Memory Cafe and Support Group are Great Resources in Union County

Many of our clients are caregivers of elders with Dementia.  They feel shut in taking care of their loved ones, never sure if they can go out together without incident.  Well, here is one option:  Jewish Family Services of Central New Jersey presents the Memory Cafe, on February 9th, March 23 and April 27th from 12 pm to 2pm at 655 Westfield Ave., Elizabeth, where individuals with dementia and their caregivers can enjoy a social outing together with support.  And it’s free!  To go, RSVP at 908-352-8375 Ex. 236.

Jewish Family Services also has an Alzheimer’s Support Group that meets on Fridays at 1 pm, at the same address.  The dates are February 3rd, March 3rd, April 7th, May 5th, and June 2nd.  Check it out!

Care planning for seniors includes care planning for the caregivers.

Call for advice on all facets of elder care planning …. 732-382-6070