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In today's world, seniors or their heirs may be faced with litigation or may opt to pursue a litigation matter. A recent case which partner Ellen S. Morris handled successfully involved defeating a lawsuit for return of inheritance against a senior filed by her step-children. The result was that the senior was able to keep her inheritance. On the flip side, in another recent case, Ellen successfully protected the children's inheritance of a house in which a step-mother had only a life estate interest but sued to gain the whole asset. The children prevailed and their father's wishes remain in tact. To read more about our litigation practice, click here.
This month partner Howard S. Krooks attended the NAELA Board of Directors meeting and presented at the NAELA Symposium: Ka 'Ohana NAELA: Celebrating our Past, Visioning our Future in Maui, Hawaii.
He participated in a panel presentation on "DRA Implementation - The Practitioner's Response." Attorneys from five states that have implemented the DRA described its impact on their practices.
The 2008 Alzheimer's Educational Conference, will be held in downtown West Palm Beach on June 5 & 6. This annual conference is one of the largest Alzheimer's caregiver conferences and educational events in the nation for family caregivers, healthcare professionals and social service providers. Information regarding services and resources will be available. Click here for more information.
As always, we welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. |
| Protecting Your House After You Move Into a Nursing Home
 While you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, it is possible the state can file a claim against your house after you die. If you get help from Medicaid to pay for the nursing home, the state may attempt to recoup from your estate whatever benefits it paid for your care. This is called "estate recovery," and given the rules for Medicaid eligibility, the only property of substantial value that a Medicaid recipient is likely to own at death is his or her home. If possible, you should consult with an attorney before entering a nursing home, or as soon as possible afterwards, in order to discuss ways to protect your home.
In Florida, we are lucky to have Homestead protection on our homes, which prevents the State from seeking recovery against our home. As you can see from above, residents of other states are not as fortunate.
In those states that have implemented the Deficit Reduction Act of 2005, the home is not counted as an asset for Medicaid eligibility purposes if the equity is less than $500,000 ($750,000 in some states). In all states, you may keep your house with no equity limit if your spouse or another dependent relative lives there.
Transferring a Home In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. There are circumstances in which it is legal to transfer a house, however, so consult an attorney before making any transfers. (For example, transfers to a disabled child or one who qualifies as a "caregiver child" are permitted.) While you can sell your house for fair market value, it may make you ineligible for Medicaid and you may have to apply the proceeds of the sale to your nursing home bills.
Estate Recovery If your spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house, lives in the house, no state may file a claim against the house for reimbursement of Medicaid nursing home expenses. If the house is in an irrevocable trust, the state cannot recover from it.
For more information on protecting the home from estate recovery, click here, here, and here. |
Florida Probate Court has Right to Determine Reasonableness of Guardian's Fees
Lutheran Services Florida, Inc., the guardian of Bertha Shell, appealed from the probate court's order denying its objections to an earlier order that awarded Lutheran Services guardian's fees in an amount less than it requested. The same order also denied Lutheran Services' request for an injunction against the Elder Justice Center (EJC), a court created program to act as an auditor and review guardians' fee petitions at the direction or under the supervision of the probate court. The court of appeals upheld the probate courts decisions based on an analysis that where the court had undertaken a review of all the statutory grounds on which fees is based and had given the guardian the opportunity to explain its fees the court was within its authority to disallow the fees, as recommended by EJC.
In re Guardianship of Shell, Case No. 2D06-4211, 2008 Fla. App. LEXIS 5738 (April 18, 2008). Click here for the full case. |
Identifying and Dealing With Financial Abuse of the Elderly
by Judy Heft, Judith Heft & Associates, LLC
It is not uncommon for the elderly to become victims of financial abuse. They may be losing -- or already have lost -- some of their cognitive ability, and their judgment may be clouded. The perpetrator can be anyone from a stranger to a friend, caretaker, relative, or trusted financial advisor.
"As people grow older, they grow dependent on others for care, and part of that care means someone must help them with their finances," says Larry Pickard, who supervises the unit that deals with financial abuse of the elderly at San Francisco Adult Protective Services.
I have seen this financial abuse in the course of my own work helping the elderly organize their finances. Mr. Smith (all names in this article have been changed) was 101 years old and living independently in an upscale facility in Fairfield County, Connecticut. None of his children or relatives lived nearby. About three years ago, I started helping him with his bill-paying and financial organization. I visited him twice a month to sort through his mail and help him decide what was junk and what he needed to read. I also took all the bills back to my office to prepare the checks. During the entire time I worked with him, Mr. Smith was very independent, but he was starting to slow down physically. A few months ago, he fell, and it became obvious that he needed 24/7 care to stay out of assisted living. He gave in to having what he referred to as "24-hour surveillance."
The home health aide, Maria, came from an agency and was recommended by the facility. She took good care of Mr. Smith, helping him bathe and dress, and staying constantly by his side. She won his trust and confidence. But then ...
Maria started having Mr. Smith write checks payable to cash for drug store supplies and the few groceries he needed. She also started paying some of the bills, which I believe is how she convinced him to sign the checks over to her. Maria then endorsed the checks with her own signature and deposited them to her own checking account. Since I wasn't a signer on his checking account, I didn't notice this until it was too late. By the time the bank statement arrived, there was a total of $16,000 in either forged checks or checks Mr. Smith had been coerced to sign.
I reported this to the police and Maria was fired from the agency. Since the agency was bonded, it had to make good on the losses. Unfortunately, Mr. Smith was devastated to learn that someone he trusted took such advantage of his sweet, trusting, and generous nature. A few weeks later, Mr. Smith passed away. It was terrible for him to spend his final weeks knowing about this crime.
Family Members Often the Culprits
Financial abuse of the elderly knows no boundaries. It can occur when someone steals or embezzles money, Social Security checks, or other property from an older person. It can be as simple as taking money from a wallet or manipulating a victim to turn over or sell personal property or belongings. In many cases, the financial abuse is done by someone the victim knows and trusts. Family members commit more than half of the crimes of financial abuse of the elderly, according to the National Association of Adult Protective Services Administrators.
Sometimes the abuser has gambling, substance abuse, or financial problems. After Mrs. Green's daughter passed away suddenly at age 50, her teenage granddaughter stole her grandmother's credit cards and charged, with interest, more than $20,000. Mrs. Green's surviving daughter took her mother's medications to feed her own substance abuse problem. This daughter also stole money, perhaps thinking it was "rightfully" hers. Mrs. Green could barely make ends meet, and the fact that her own relatives were stealing from her made it even worse.
Often the elderly are afraid to report this abuse, fearing that their children will consider them too demanding or unfit to handle their finances. They may fear losing an important part of their independence and can be embarrassed that they can't handle the situation themselves. Mrs. Green did not want to report these crimes, because she was afraid of alienating her only surviving daughter and getting her granddaughter into more trouble. She was also depressed over the loss of her daughter.
Americans over the age of 55 control 70 percent of the nation's wealth. Many of the elderly do not realize the value of their assets and how those assets make them vulnerable. A recent FBI investigation found that fraudulent telemarketers were directing nearly 80 percent of their calls to seniors; the elderly are often dependent on others for help, and a "helpful" voice at the end of the telephone line can exert a significant influence.
How to Detect Financial Abuse and What to Do About It
There are many signs to watch for in detecting financial abuse of the elderly. Someone could force an elderly person to sell or give away property or to sign a power of attorney. Valuable objects may start to disappear. There may be unusual activity in bank accounts, such as sudden withdrawals of large amounts, many checks made out to cash, and low bank balances when there should be plenty of available funds. A new "best friend" or "sweetheart" might appear on the scene. Signatures on checks do not resemble the older person's signature. A name may be added to an older person's bank account.
There are several ways to prevent this financial abuse. One way is to have several family members be involved with the older person. Encourage the elderly to become involved with the community, senior centers, or religious groups, which all can provide a strong support system. Take advantage of direct deposit of income checks, including Social Security and dividends. Carefully screen and verify caregivers' references and do a thorough background check.
California Advocates for Nursing Home Reform estimates that only one in six cases of financial abuse is ever reported. Any person who suspects that financial abuse has occurred should report it either to her local police department or to a trusted social worker or adult child, assuming the child is not also the abuser. When in doubt, err on the side of caution. Financial abuse can continue and can escalate if there is no intervention. Reporting the abuse and intervening in time can save the assets, health, and dignity of the elderly.
Judy Heft is a personal financial organizer who provides daily money management and bill paying services to the elderly and people of all ages. She is based in Stamford, Connecticut, and can be reached at: judy@judithheft.com and www.judithheft.com. | |
Book Review: Mom Minus Dad

Jamieson Haverkampf. Mom Minus Dad. Blooming Women Press, Atlanta, GA, 2008. 307 pages.
$14.95 from Amazon (click on book to order).
When one parent dies, the children have to quickly learn to deal with their own grief as well as assist their surviving parent. Written by a woman whose father died unexpectedly of cancer, Mom Minus Dad is packed with information that will help families provide support to a newly widowed parent.
The book discusses the many aspects of dealing with a parent's death and is written in an easy-to-read, conversational style. The author, Jamieson Haverkampf, and her sister had to help their mother manage her affairs after their father died. Haverkampf uses her experience to explain how to handle the first weeks after loss, build a support team, take care of yourself, handle paperwork and finances, and help the parent relocate, if that is necessary. The book also provides advice on how to move forward, handle holidays and anniversaries, deal with the change in family dynamics, and find a community. Interspersed in each chapter are stories from the author's experience.
Mom Minus Dad contains an impressive 113 pages of resources covering almost every topic a child might encounter while helping a grieving parent, including low-cost airfares available to the bereaved, food delivery services, state-by-state bereavement support groups, bookkeepers, moving companies, online communities, and legal issues. The book also includes checklists and worksheets to assist with every task. |
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Taking a Second Look If You Elected Early Social Security Benefits
Did you elect to take Social Security benefits before your full retirement age? If you did and are now looking for extra income, there may be an answer. Once you reach full retirement age, you can pay back the money you have received and reapply for full retirement benefits.
Although you can collect Social Security benefits between age 62 and your full retirement age, if you do, your benefits will be lower. For example, if you were born in 1944 and decide to retire at age 62, four years before your full retirement age of 66, your total benefit reduction is 25 percent. If your full benefit was to be $1,000 a month, your reduced benefit will be $750.
A little-known provision of Social Security allows you to withdraw your application for early benefits and reapply for your full benefits. The catch is that you must be able to pay back all the money you received so far. However, because you do not have to pay any interest on the benefits you received, if you can find the money to repay the benefits, it may be worth it. You could think of it as an interest-free loan.
Articles on the potential benefits of withdrawing your early Social Security benefit from USA Today and MSN have examples of how it works.
Click here to download the withdrawal of application form.
For more information on Social Security, click here.
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Federal Nursing Home Site Now Notes Troubled Facilities
The federal Centers for Medicare & Medicaid Services (CMS) has announced that its Web site comparing nursing homes will now identify facilities that are on its list of those that have a history of poor performance.
From now on, the agency's site will point out nursing homes that it calls Special Focus Facilities -- those that have repeated violations of state and federal health and safety rules and that rank in the worst 5 percent to 10 percent for inspection results in a given state. CMS released the names of the 131 SFF facilities earlier this year, but this is the first time they will be included on the Nursing Home Compare site. (See " Feds Finally Release Complete List of Deficient Nursing Homes,")
The troubled facilities are identified by a small "2" in superscript next to a facility's name.
A Wall Street Journal article on the CMS decision notes that "consumer groups and nursing home officials warn, however, that nothing can substitute for visiting a nursing home in person." The article also highlights a free Web site MemberoftheFamily.net, that features easy-to-read, color-coded assessments of nursing homes nationwide.
The Journal article observes that CMS began making some of the information about problematic nursing homes public last fall after pressure from Sens. Herb Kohl (D-WI) and Charles Grassley (R-IA). The senators are sponsoring a bill that would force CMS to reveal even more data about nursing homes and Grassley is trying to get the provisions added to a Medicare-related bill expected to pass Congress by July 1.
To visit the Nursing Home Compare Web site, click here.
To visit the Member of the Family site, click here.
For the April 24, 2008, Wall Street Journal article, "Web Sites Expand Rating Information On Nursing Homes," click here. (Requires an online subscription.)
For more on choosing a nursing home, click here. |
The Greatest Compliment ...
We always appreciate referrals from our satisfied clients and business partners to friends, family members or business contacts. We welcome the opportunity to serve the people you care about. Click on the blue Forward Email at the bottom of the page to send this newsletter to someone who will benefit from our insights. | |
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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 long term care insurance, Medicaid applications, home and community-based Medicaid 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, the purchase of life estates, income producing real estate and spenddown planning; disability planning, including special needs trusts and guardianship; estate planning, including wills and trusts and advance directives; and probate, which encompasses estate and trust administration as well as 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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