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 We are pleased to announce that Ellen S. Morris and Howard S. Krooks have both been named members of Florida Trend magazine's 2007 Legal Elite. This annual edition of Florida Trend's Legal Elite names the top 868 lawyers who have earned the trust and confidence of those who know their work the best. The prestigious roster is selected from 59,481 Florida Bar members who practice in the state.
The August issue of The Elder Law Update, a monthly e-newsletter full of the latest legal developments and other trends of vital interest to seniors and their advocates, is brimming with informative articles. Read on to learn about ways to protect yourself when signing a nursing home admission agreement, the difference between a "certified senior advisor" and a "certified financial planner," how to choose the right kind of payment option if you are considering a continuing care retirement community, and more.
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Should You Sign a Nursing Home Admission Agreement?
 Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?
It is important not to rush, but rather to read. Read the agreement carefully because it could contain illegal or misleading provisions. If possible, try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.
Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident's expenses and a binding arbitration agreement.
Responsible party
A nursing home may try to get you to sign the agreement as the "responsible party." It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.
If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident's agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term "responsible party," "guarantor," "financial agent," or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident's income and resources to pay.
Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident's care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.
Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.
- Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
- Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident's needs, the resident's heath has improved, the resident's presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
- Waiver of rights. Any provision that waives the nursing home's liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident's health.
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| When Getting Financial Advice, Don't Be Fooled by Impressive-Sounding Credentials
 A "certified senior advisor" may sound like a trustworthy person to provide investment advice to the elderly, but beware! While the title has an impressive ring to it, it doesn't take much to earn it. According to an article in the New York Times, many insurance companies are using sales agents with fancy-sounding credentials, but few actual qualifications, to sell annuities to seniors.
Thousands of financial advisors market themselves as trained to provide advice to seniors, using authoritative titles like "certified senior advisor" or "certified retirement counselor." Unlike a "certified financial planner," which requires years of rigorous study, becoming a "certified senior advisor" involves attending a three-and-a-half-day seminar and then passing an easy multiple choice test. "Certified senior advisors" are not even required to have a high school or college diploma.
Insurance companies often use graduates of these programs to sell insurance contracts to seniors-in particular deferred annuity contracts, which may not be in the best interest of the senior. Unlike an immediate annuity, which begins paying money right away, a deferred annuity does not begin paying for a set number of years. While deferred annuities can be a good way for some wealthy seniors to pass money to their heirs, it is not a good product for seniors living off their savings because they may die before they receive the money. However, insurance sales agents often push deferred annuities because the products pay higher commissions.
According to the New York Times, the following credentials sound impressive, but actually take only a few days to earn:
- certified senior adviser
- certified retirement counselor
- registered financial gerontologist
- certified retirement financial adviser
If you are looking for qualified financial advice, look for a "certified financial planner" or a "chartered financial analyst." Both programs actually involve years of study and require a college degree.
To read the article, click here.
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 Stella Mora Henry, RN, with Ann Convery. The Eldercare Handbook: Difficult Choices, Compassionate Solutions. New York, NY: HarperCollins, 2006. 272 pages. (Also available in a Spanish-language edition.)
$12.71 from Amazon.com (click on book to order)
Few children are prepared to deal with aging parents. As author Stella Henry, RN, puts it, "We are all pioneers in this strange frontier of caregiver and decision maker for parents. Just as children do not come with instructions, neither do parents."
In The Eldercare Handbook, Henry supplies just such an instruction manual for those facing care decisions involving an elderly parent or loved one. She is particularly well-positioned to write the book, having spent 26 years as a nursing home administrator witnessing firsthand the difficult choices families confront, as well as having struggled with the care of her own parents as they both endured Alzheimer's disease.
Henry notes that there are three ways to enter long-term care: following a medical crisis, after a long, protracted decline, or through advance planning. In her experience, 95 percent of families looking into long-term care are in a state of crisis (for example, hospitals frequently give only 24-hours notice to find a care facility). She hopes her book will help change this crisis-driven mindset.
The book's first half identifies the warning signs that a parent may require long-term care and may no longer be safely cared for at home. But equally important, Henry also discusses how to cope with the emotions (such as denial and anger) and shifting family roles that a parent's increasing disability typically trigger.
The second half of the book offers advice on selecting a long-term care facility and tips on accommodating to the new living arrangement, including when and how to visit, how to deal with "Take me home!" demands, and what to expect of the certified nurse's assistant (CAN), the person who has the closest contact with the nursing home resident. Henry also offers a brief roadmap to the medical, legal and insurance maze that inevitably accompanies the need for long-term care.
Henry's wise counsel is interspersed with compelling real-life accounts of parents and children coping with the need for care.
As Henry points out, the idea of a quick, peaceful death is a common myth. With lifespans increasing, it is more likely that death will follow a period of protracted illness or disability. The Eldercare Handbook is an essential guide as that final stage of life unfolds or, even better, before it begins.
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| Continuing Care Retirement Community Options Are Growing
 As continuing care retirement communities (CCRCs) gain in popularity, the payment options are growing as well. CCRCs offer a spectrum of care, from independent housing to assisted living to round-the-clock nursing services, all on one campus. According to an article in the New York Times, the new payment options mean selecting a CCRC has become more complicated. CCRC residents must pay a large entrance fee plus a monthly fee, but the amount of each fee and what it covers can vary, depending on the contract. There are three basic CCRC contracts: life contracts, which cover unlimited long-term nursing care at little or no increase in the monthly fee; modified contracts, which include a specified duration of long-term nursing care, beyond which fees rise as care increases; and fee-for-service contracts, in which residents pay a reduced monthly fee but pay full daily rates for long-term nursing care.
Communities typically offer several variations on each contract. Some CCRCs give residents the option of paying a higher entry fee, which remains refundable. Part of the entry fee will be refunded either to the resident when the resident moves or to the resident's estate once the resident dies. At some other CCRCs, entrance fees are refundable for a period of time, and then become nonrefundable. Still other communities may require residents to purchase their residences. What the monthly fee covers can also vary. Some places include housekeeping and meals, and others don't.
All these choices mean that CCRC contracts have become much more confusing. There is help available. At www.ccrcdata.org you can find a directory of CCRCs and sort them by location, price, long-term health coverage, and refund plans. In addition, once you have selected a CCRC, you should have a lawyer review the contract before signing it. Deciding on a CCRC is a once-in-a-lifetime choice, and it is a decision that should be made carefully.
For more information on CCRCs, click here.
To read the New York Times article reprinted in the International Herald Tribune, click here. |
| Nursing Home Abolitionist Offers Homelike Alternative
 Dr. William Thomas, a Harvard-educated physician, doesn't believe in nursing homes.
"I want to be there when they turn the lights out on the last nursing home in America," says Thomas, who has termed himself a "nursing home abolitionist."
"There are two groups in America that are routinely institutionalized -- convicted criminals and frail older people," Thomas adds. In both types of institutions, he says, residents are deprived of basic choices.
Thomas says that a more flexible, smaller-scale alternative to nursing homes would work better, and he has come up with just such an alternative that is spreading around the nation.
Thomas' revolutionary solution to the drawbacks of conventional facilities is the Green House, a large residential home built for 8 to 10 people in which residents live their lives with the help of qualified nurses and caretakers. Thomas came up with the concept of the Green House after hearing an elderly resident of a conventional nursing home complain that she was incredibly lonely.
There are currently 29 communities of Green Houses in 19 U.S. states, including Alaska, Montana, Michigan, Ohio, New York, and Florida. Thomas estimates that Green Houses will be built in every state in the next five years, and that 160,000 will go up in the next 20 years.
Thomas, who is a geriatric specialist in Sherburne, New York, designed the Green House to be the antithesis of the nursing home. Instead of a cafeteria, a Green House has a home-style dining room with tables and chairs. In place of hospital rooms, a Green House has bedrooms. Although Green Houses lack large lawns, they have a backyard, a front yard, and a patio.
A typical Green House runs about 5,500 square feet and is located near a church or residential community. Green Houses have gardens or pets if the residents want them, and also provide services that the residents specifically request, such as rehabilitative care and programs for people with Alzheimer's and developmental disabilities.
Thomas says that a Green House allows residents to make personal choices.
"Every person who lives there has a private room and bathroom," he says. "All of the food is cooked in the house. Strangers are not allowed to come into the house without knocking at the door and being invited in." These simple features give the seniors privacy and space that nursing homes lack, Thomas notes.
"In a typical nursing home, the architecture reinforces the idea that staff efficiency is paramount," says Thomas. "In the Green House, the architecture is designed to maximize wellbeing for the people who live and work there. You can give elder care in a non-institutional, community-based setting, even while [adhering] to nursing home regulations."
Costs Comparable to Conventional Nursing Homes
But isn't all this privacy and personal attention wildly expensive? Thomas says no, that Green Houses cost about the same as a nursing home. Although Green Houses save money by eliminating middle-level management, they spend it to retain quality caregivers. Green Houses are able to accept both private-pay and Medicaid patients.
The concept of Green Houses has been developed partly through the Eden Alternative, a non-profit organization that Thomas founded to focus on improving long-term care for seniors. The Green House Project is funded by the Robert Wood Johnson Foundation and is organized through NCB Capital Impact, a non-profit arm of the National Consumer Cooperative Bank, which provides consulting help and pre-development loans to organizations that want to establish Green Houses. So far the list of organizations that have set up Green Houses includes churches and ministries, nursing homes, counties, medical care facilities, and not-for-profits that serve people with developmental disabilities.
Often the organization interested in setting up a Green House has operated a nursing home in the past, says Thomas. The organization finds that managing a Green House is a very different experience. Thomas says that nursing homes waste money on management, a problem that Green Houses avoid.
"The typical nursing home does not pay CNAs [certified nurse assistants] very well. It retains a significant chunk of the dollar to pay for middle-level management," he says. In the Green House, the caregivers, who are called "shahbazim, " from the Persian word for "royal falcon," take on a variety of roles. Shabazim can be certified as CNAs, "safe serve" food handlers, and infection control specialists. They perform a variety of tasks for residents in the home, including cooking, health care, and CPR. Unlike nursing home staff, shabazim work in tandem with the elders for whom they care.
Thomas believes this is an improvement over the impersonal way in which care is provided in a nursing home.
"We are attempting to de-industrialize long-term care," he declares.
Thomas says there are obstacles to establishing Green Houses. "I think there are powerful organizations that would like to maintain the status quo," he notes, but he believes the boomer generation and the market's rising expectations for long-term care have changed how elder care providers want to serve their target audience.
Thomas is the author of five books, the most recent of which is What Are Old People For?: How Elders Will Save the World. Thomas' original model for the Green House was his own extended family. He grew up in one of a chain of family residences in upstate New York within sight of his grandmother's and great-uncle's homes.
"When I grew up and moved away, I had an image of older people fully engaged in the world around them. I guess that stuck with me as I went about my work. [Now] I just believe that older people deserve the opportunity to live as they always have," Thomas says.
For more on The Green House Project, click here. |
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Elder Law Associates PA is a boutique elder law firm that practices exclusively in Medicaid and long term care planning, including Medicaid applications, home and community-based waiver services, diversion program benefits, nursing home benefits, spousal refusal applications, and Medicaid fair hearings and appeals; nursing home and assisted living facility residents' rights litigation; asset preservation planning with a special focus on planning in light of the Deficit Reduction Act of 2005, including personal service agreements, income producing real estate for Medicaid eligibility, irrevocable trusts, and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts; advance directives; and probate, encompassing estate and trust administration and specialized litigation.
We assist clients in planning for the possibility of disability, incapacity, home health care, assisted living and/or nursing home placement. Our firm enables clients to avoid impoverishment caused by the escalating cost of long term care, to maintain their right to make health care decisions and to avoid unnecessary medical treatment.
We hope you have enjoyed The Elder Law Update. If you have questions about something you read, elder law matters or issues concerning persons with disabilities, we would be delighted to hear from you. We serve as an elder law resource to many professionals and organizations and want to become your elder law resource as well. You can reach us at Info@ElderLawAssociates.com.
Warm regards,
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Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA
Elder Law Associates PA
phone: (561) 750-3850 / (800) 353-3752
fax: (561) 750-4069
This publication is intended for general information purposes only. It is not intended to constitute individual legal advice to any specific client. |
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