Florida Elder Law Blog - ElderLawAssociates.com

Looking for a way to help Mom and Dad pay for Home care or assisted living? Perhaps you are their caregiver. Wouldn't it be nice to receive some extra income to help you provide their care? There is financial help available for senior veterans and their spouses.(Of course, it always helps to consult with an elder law attorney before making any long-term care plans.)

For veterans who served during a time of war or for their surviving spouses, the Veterans Aid & Attendance Pension will pay additional income to cover long term care costs. The great news about this program is that VA will allow veterans' households to include the annual cost of paying any person such as family members, friends or hired help for care when calculating the Pension benefit.

Pension can provide an additional monthly income of up to $1,949 a month for a couple, $1,644 a month for a single veteran or $1,056 a month for a single surviving spouse of a veteran. This money can be used to help pay the cost of home care, adult day services, assisted living or nursing home services.

In order to reduce income to meet the income test for pension, a rating for "aid and attendance" or "housebound" is crucial. Not only does the rating significantly increase the benefit amount but without a rating, room and board costs for assisted living are not deductible for purposes of reducing income. Only the much smaller assisted living medical costs are deductible.

For home care, non-medical costs are only deductible if the in-home attendant is licensed for healthcare in that state or if there is a rating. Since the non-medical costs for home care represent the bulk of all costs for long-term care at home, without a rating, those households with a non-licensed attendant would not qualify for the benefit. Examples of medical or nursing services at home would be help with activities of daily living such as dressing, bathing, toileting, ambulating, feeding, diapering and so on. Other services might include medication reminders or supervision necessary to provide a protective environment for the care recipient -- in the case of dementia or Alzheimer's.

A rating for aid and attendance is automatic if someone is a patient in a nursing home or that person is blind or so nearly blind as to need assistance.

It is our understanding that a non-licensed in-home attendant could be just about anyone receiving pay for providing services. This might be members of the family, friends, or someone hired to live in the home. Unfortunately, a spouse cannot be included in this list for reimbursable caregivers.

For a disabled person who has been rated, a family member will be considered an in-home attendant, but that family member has to be paid for services duly rendered. There is potential for fraud here where a family member may move into the home and ostensibly receive payment as a caregiver but not actually provide the level of care paid for. Documentation for this care must be provided to VA, and it is reasonable for VA to question whether the services being purchased from a family member living in the household are legitimate. Such arrangements should be extensively documented and completely arm's-length.

The care arrangements and payment for home care must be made prior to application and there must be evidence that this care is needed on an ongoing and regular basis. We recommend a formal care contract and monthly invoice billing for services. Money must exchange hands and there must be evidence of this. All of this documentation must be provided as proof to VA when making application for the pension benefit. Costs for these services must be unreimbursed; meaning these costs are not paid by insurance, by contributions from the family or from other sources. Even though the family member being paid for services cannot reimburse the veteran household directly,the family may pay the bills for the veteran household. This indirect form of support is allowed.

There is an application form to be submitted, along with a doctor's report form, documentation of medical expenses and payment of home care services or facility fees. Other documentation includes original discharge papers, marriage records if applicable and a death certificate where applicable. An inventory of all sources of household income and all household cash equivalent assets is also required. Providing complete documentation with the initial application will expedite a rating and approval for pension payment.

For those who want to do it themselves, the National Care Planning Council provides help in their book “How to Apply for the Veterans Aid & Attendance Pension Benefit.”

This book provides, in detail, a description of application for the Pension Benefit and what information and documentation other than the application form should be submitted. All necessary forms are included in the book such as the application form and forms for medical expenses and other costs.

ElderLawAnswers.com review of this book states; “This is the book to get if you want an in-depth understanding of how veterans' benefits work, what options are available and how to apply. http://www.elderlawanswers.com/resources/article.asp?id=6209&section=5&state =

One purchaser of the “How to Apply” book emailed his successful experience.

“I purchased " How to Apply for the Veterans Aid & Attendance Benefit" earlier this year, and I wanted to let you know how much of a blessing this book was.

I followed the instructions exactly as stated in the book. I used the forms provided (Forms 1-4). I made copies of everything. I submitted my dad's application on March 31, 2009. I received a response TODAY, May 2, 2009, that approves my father's application, and he will be receiving a substantial amount in benefits monthly, beginning April 1st.

In addition, the VA sent additional forms for me to submit stating that my dad may be eligible to receive additional benefits for medical expenses incurred from March 31, 2008 to March 31, 2009.

In essence, I had to submit no additional documentation, just the documentation you suggested in your book. I was approved in one month's time. NO DELAYS!!!

Thank you for your wonderful book! I needed no consultants, no attorneys, no one and nothing but the advice contained within your book. I highly recommend this book to EVERYONE who is seeking to apply for this valuable benefit.”

Veterans Benefits Consultant

A veterans benefits consultant is an individual who helps veterans understand long term care benefits available through VA. This can include information on veterans health care, state veterans homes and veterans disability income benefits. Consultants place particular emphasis on Pension and Death Pension because these benefits are typically more useful for the elderly needing long term care. Pension is also known as "the aid and attendance benefit." Being a consultant is not a formal title but is merely a description of this person's function.

Consultants provide information about the aid and attendance benefit including what it is, who can qualify and what information and documentation are necessary in order to file a claim. A consultant does not participate in any way in the application process unless that consultant is an accredited attorney representing his or her client in proceedings before VA. Consultants who are accredited veterans service organization representatives can also assist claimants with the filing of a claim. For all other consultations, veteran households seeking help with filing a claim are directed to an appropriate veterans service organization or to a state or county veterans service officer or, where appropriate, they are encouraged to file a claim on their own.

Some consultants also help potential claimants realign their assets and complete important estate planning documents prior to making application.

Veterans Benefits Consultants are private practitioners or in some cases representatives of veterans service organizations and are not connected with the Department of Veterans Affairs.

Labels: Florida Elder Care, Florida Elder Law Attorney

Generally, elderly parents want to remain living in their own home. However, remaining in the home becomes a concern when children see their parents slowing down, perhaps even having trouble with handling stairs and doing general daily activities. Yet, with parents' mental and physical health currently not creating problems, there seems to be no imminent need to search out support services or other accommodations for aging parents.

This is now the time to evaluate the home to make it safe and secure for your loved ones -- now and in the near future -- in anticipation of aging disabilities that may occur. Help and support are available. The nation as a whole is more aware of elderly needs and services and products are becoming available at an outstanding pace. This, then, is the perfect time to consult with a qualified Florida elder law attorney to make elder care decisions and plans.

The Bureau of Labor Statistics states,

“Employment of personal and home care aides is projected to grow by 51 percent between 2006 and 2016, which is much faster than the average for all occupations. The expected growth is due, in large part, to the projected rise in the number of elderly people, an age group that often has mounting health problems and that needs some assistance with daily activities.” Bureau of labor Statistics-Occupational Outlook Handbook, 2008-09 Edition

This growing need for aides and services also encompasses

• home remodeling services -- making a home more serviceable to the elderly;
• safety alert systems and technology;
• motion sensors to monitor movement;
• telehealth services -- using home-based computer systems for the doctors office or a nurse to monitor vital signs and
• even a pill dispenser that notifies when it is time to take medication.

Where do you begin to make sure your elderly family member is safe and managing well in his or her home?

Visit often and at different times of the day and night. Make note of daily activities that appear challenging and where changes might be made to add safety and convenience. Remove rugs that slide -- causing a fall -- and move furniture with sharp edges. Set the water heater at a lower temperature. This will protect their older sensitive skin from scalds and burns. Be sure smoke detectors and carbon monoxide detectors are in place.

Bathrooms are a hazard area for the elderly. Grab bars by the toilet and shower are a must to help prevent falls. There are easy to install bars at your local hardware store if you want to do the work yourself. Another item that is good to have is a shower stool or chair.

If you are not sure of what needs to be done, consider hiring a professional. There are companies that specialize in home remodeling and accommodation for seniors. Michelle Graham of Accessible Design by Studio G4 says about senior home remodel projects,

“The main thing we incorporate in all of our projects is a careful study of needs and potential needs that may develop throughout a client's lifespan.”

Keep in mind what future home adjustments might be needed for your parents to “age in place” in their home.

Home safety or medical alert companies provide GPS-based bracelets or pendants to track the elderly at home who tend to wander. Or the companies may provide alarm devices such as pendants or bracelets which allow the elderly to alert someone if there has been a fall or a sudden health-related attack. In the event an alarm has been triggered, a 24 hour monitoring service will alert the family or medical emergency services or call a neighbor depending on previous instructions. In addition there are companies that will install motion sensors in the home to monitor the elderly on a 24 hour basis.

Don't forget your parents' community as a valuable resource for helping them stay in their home. Take Margaret Muller as an example. At 82 years of age, Margaret lives alone in her small home. She manages very well with the help of her local Senior Center. The Center's “Senior Companion” program sees that Margaret is taken to the store for groceries and other needs and checks in with her often to see how she is doing. Once a day, the Senior Center delivers a hot healthy meal to her door. Having these services and visits gives Margaret the help she needs and peace of mind that she is not alone.

Neighbors, local church groups, senior centers and city centers are some places to look for assistance. Most of the time there is little or no cost for these services.

Your state aging services unit is a valuable community resource. The National Area on Aging website www.aoa.gov states:

“AoA, through the Older Americans Act and other legislation, supports programs that help older adults maintain their independence and dignity in their homes and communities. In addition AoA provides funding for a range of supports to family caregivers.”

Some of the programs the site lists are:

“Supportive Services and Senior Centers

Nutrition Services

National Family Caregiver Support Program

Grants for Native Americans

Nursing Home Diversion Grants

Aging & Disability Resource Centers

Evidence-Based Disease Prevention

Long-Term Care Planning

Alzheimer's Disease Grants

Naturally Occurring Retirement Communities”

A few thoughts on hiring home care aides or live-in care givers.

The classifieds are filled with people looking for work as aides to the elderly. Many of these aides are well-qualified, honest people who will do a good job; but, of course, there will be some not so reputable. If you are looking to hire someone, be sure you interview and check references and qualifications. You will be responsible for scheduling that person and doing payroll and taxes as well. Be very sure you hire someone trustworthy, as the elderly seem to trust these helpers more than they should and therefore can easily be taken advantage of.

A professional home care service will eliminate your employment concerns. Professionally-provided aides are usually bonded and service is guaranteed. Home care companies take care of the scheduling and payment of their employees. Home care companies cater to the elderly in their homes by offering a variety of services.

These providers represent a rapidly growing trend to allow people needing help with long term care to remain in their home or in the community instead of going to a care facility. The services offered may include:

• companionship
• grooming and dressing
• recreational activities
• incontinent care
• handyman services
• teeth brushing
• medication reminders
• bathing or showering
• light housekeeping
• meal preparation
• respite for family caregivers
• errands and shopping
• reading email or letters
• overseeing home deliveries
• dealing with vendors
• transportation services
• changing linens
• laundry and ironing
• organizing closets
• care of house plants
• 24-hour emergency response
• family counseling
• phone call checks
• and much more.

Thomas Day, Director of the National Care Planning Council states,

“Care in the home provided by a spouse or a child is the most common form of long-term care in this country. About 73% of all long term care is provided in the home environment typically by family caregivers.”

As their caregiver, you can make the difference in the quality of life for your aging parents and if staying in their home is a possibility, you have the resources to make it happen.

Labels: Florida Elder Care, Florida Elder Law Attorney

The financial crisis, coupled with possible changes in the estate tax law, make now a good time to review your estate plan. The future of the estate tax will likely be up for debate in Congress soon because one of the priorities of the Obama administration is making the estate tax permanent. Given the uncertain climate, it is important to make sure your estate plan does what you want it to do.

Under current law, the estate tax rate is 45 percent for 2009, but the estate tax will be eliminated in 2010. The tax is scheduled to return in 2011 at a rate of 55 percent. The amount of an estate that is exempt from taxes also changes under current law. It is now $3.5 million, but will drop to $1 million when the law is reinstated in 2011. The Obama administration would like to eliminate the one-year repeal of the estate tax. It isn't clear what the permanent rate would be, but according to an article in the New York Times, most tax experts believe the exemption will be kept at $3.5 million and the rate will stay at 45 percent.

The Times article identifies several things to consider when reviewing your estate plan:

• Formula clauses in wills. Wills that give specific amounts to trusts can be problematic given the change in the estate tax. Instead of naming a specific sum to go into a trust, your will could name a percentage of whatever limit is currently in place.
  
  
• Bypass or credit shelter trusts. Bypass trusts allow you to put any money up to the exemption amount into a trust. Your spouse would receive income from the trust and the remainder would go to other family members after your spouse dies. The problem with this is that with the exemption being so large, most of your estate could go into a trust, thereby limiting your spouse's inheritance. You may need to make sure the trust is structured in a way that allows your spouse access to the funds.
  
  
• State estate tax. States have different exemption amounts that may be less than the federal amount. You may put more money in the bypass trust to avoid paying federal estate taxes, but end up still having to pay state estate taxes. Consult with a lawyer to determine a way to provide your executor with flexibility to deal with this issue.
  
  
• Grantor retained annuity trust (GRAT) . A GRAT is a way to avoid gift tax for lifetime gifts of more than $1 million. You put appreciating assets in a short-term (two-year) trust and keep the right to an income stream for the life of the trust. If assets appreciate above a rate set by the IRS, your family members will receive the appreciation. Current law allows you to set up a GRAT that will result in little or no gift tax, but Congress is considering changing the law, so setting up a GRAT now may be especially appealing.
  
  
• Family limited partnerships. Family limited partnerships are another giving technique. You can put assets like securities, real estate, or businesses into a such a partnership. Then you can give away shares of the partnership to family members. Because these shares can't be sold to non-family members, the price is discounted. Congress is considering ending the discount, so if you want to establish one of these partnerships, you should act soon.
  
  
• Beneficiary designation forms. Money from a retirement account usually passes outside an estate to the person you designate on your beneficiary designation form. With all the consolidation in the financial industry, you should make sure your 401(k) or other retirement account has the correct beneficiary designation form.

To read the entire New York Times article, click here. For a related Times article, click here.

Labels: Florida Elder Law Attorney, Florida Estate Planning

Second marriages, significant others and blended families potentially give rise to contested guardianship situations.

One such case I recently handled involved a man who suffered from dementia in the middle, his three children from his first marriage of over 40 years on one side and his second wife on the other. In this case, the wife exhibited frustration and even violence toward her helpless spouse during his illness. She also refused to provide expensive, high quality care for him because it would reduce her spending money. His kids sued for guardianship to protect him, his assets and ensure he received the best care his money could buy.

After all, we work hard and save our money. Then, when we are ill and can afford personal, private care, we should be able to use our money for that purpose. The court granted our petition for the children to be their father's guardians. The wife no longer had control of his care or finances. The man had private care in his home for many years.

Signing Declarations of Pre-need Guardianship, Durable Powers of Attorney and Designations of Health Care Surrogate may negate the need for a guardianship. However, be sure the person you appoint has solely your best interest in mind and heart. Even with these documents, but especially without them, the guardianship process may provide the only forum for ensuring the best interests of the incapacitated person.

It's always best to consult a qualified, reputable Florida Guardianship Attorney when dealing with such matters. We invite you to call us anytime for an initial consultation.

-- Ellen S. Morris, Esq.

Labels: Florida Guardianship