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May 2010
The Elder Law Update
Important Updates for Seniors and their Advocates
In This Issue
Case of the Month:
Attorneys' Obligation to Be Alert to Undue Influence
Physician's Guide to Assessing and Counseling Older Drivers
Beware of Deed Copy Scam
Steps to Take in Advance of Death or Disability
Powers of Attorney Come in Different Flavors
Book Review
Circles of Care: How to Set Up Quality Home Care for Our Elders
Getting Medicare While Traveling or Living Overseas
Social Security Adds New Online Medicare Application

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Special Needs Community News
 
Boy on playground
 
Friendship Circle Links Teens and Special Needs Children
 

The Friendship Circle is a national program in which teens are given the opportunity to befriend a child with special needs.
 
 
Veteran's Corner
 
VA Corner

National Veterans Golden Age Games Begin

Hundreds of veterans from around the nation are making their way to Des Moines, Iowa, to compete in the 24th National Veterans Golden Age Games.

Events at the Games are open to all U.S. military veterans age 55 or older who receive care at a VA medical facility. The games give participants the opportunity to compete in ambulatory, visually-impaired and wheelchair divisions, according to their ages. Events include swimming, cycling, bowling, croquet, air rifle, golf, shuffleboard, horseshoes, discus and shot-put.

Read more ...

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-Happy Memorial Day Weekend-
Memorial Day
 
 
Partner Howard S. Krooks, JD, CELA, CAP
spoke at the National Academy of Elder Law Attorneys Annual Meeting in Orlando on May 15, 2010 regarding the Medicaid and Long Term Care Provisions of the new Health Care Reform Law.
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Partner Ellen S. Morris, Esq. presented current legislative issues facing the Florida Legislature to the Joint Task Force of The Florida Bar Elder Law Section and the Academy of Florida Elder Law Attorneys.  
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We provide The Elder Law Update to our clients and our colleagues who make up a wide range of service providers for seniors and people with disabilities to facilitate the dissemination of helpful and accurate information. We thank you for letting us share our knowledge with you. We welcome your comments and questions. You may send them to Info@ElderLawAssociates.com. 
 
Case of the Month: Attorneys' Obligation to
Be Alert to Undue Influence

 
Magnifying glassWhen preparing estate planning documents, an attorney has a fiduciary duty to the client to be alert to any undue influence being placed upon the client. The following questions must be answered when an action is contemplated involving undue influence:
  • Is the client living in an assisted living facility or skilled nursing facility, especially one specializing in care for dementia patients?

  • Who called the attorney on behalf of the client?

  • Did the attorney meet with the client alone?

  • Who else was present during the meeting with the attorney?

  • Was the client reading from prepared notes which may have been dictated by the abuser?

  • Who paid the attorney?

  • What were the circumstances of prior, long-standing estate planning and advance directive documents?

  • Are the new documents a big departure from an established plan?

  • Did the client ask any questions related to the documents?

  • Did the client appear to understand the nature and content of the documents?

  • Was the client oriented to place, day, year and time?
In one of our recent cases, the answers to the above questions indicated trouble on all fronts. Our client was Sue*, who was the long-standing Attorney in Fact for her mother, Fran. Fran was in her late nineties and living in a dementia section of an assisted living facility. Fran's son, Glen, engaged a new attorney to revise Fran's advance directive documents in his favor. The new attorney drafted the new documents without performing due diligence and without conferring with Fran alone while ignoring all relevant signs of undue influence. Then the attorney allowed Fran to sign the documents in the presence of Glen.
 
Distressed over her mother's care, Sue was forced to go to court to fight against her brother's actions. We represented Sue in her fight to invalidate the new advance directive documents and to gain guardianship over her mother. The court did appoint Sue as Guardian for her mother and invalidated the new advance directive documents. Then Sue, as Guardian, was given court authority to file an action against the attorney hired by Glen, which we are also handling for her. 
 
Moral: Undue influence beware and estate planning attorney be wary.
 
*Names have been changed.
 
Physician's Guide to Assessing and Counseling Older Drivers
 
Driving & SeniorsTo help protect the lives of older drivers and make our roads safer, the American Medical Association (AMA) recently released a new Physician's Guide to Assessing and Counseling Older Drivers. Motor vehicle injuries are a leading cause of injury-related deaths in adults over 65. The fatality rate for drivers 85 years and older is nine times higher than the rate for drivers 25 to 69 years old. The Guide was developed by the AMA in cooperation with the National Highway Traffic Safety Administration.
 
The information in this guide is provided to assist physicians in evaluating the ability of their older patients to operate motor vehicles safely as part of their everyday, personal activities.

This guide is not intended as a standard of medical care, nor should it be used as a substitute for physicians' clinical judgement. Rather, this guide reflects the scientific literature and views of experts as of December 2009, and is provided for informational and educational purposes only.

Currently, the Physician's Guide to Assessing and Counseling Older Drivers is still in production but you can view the Guide chapter by chapter by clicking here. To order a hard copy or CD ROM, please send your name and preference to Lela Manning.
News From New York
 
Albany County Clerk Advises Property Owners to Beware of Deed Copy Scam
 
 
Alert to Undue InfluenceAlbany County Clerk Tom Clingan's office has received calls from concerned property owners about communications that they have received from "New York Retrieval, Inc" offering to secure a certified copy of the deed to their property for a fee of nearly $60.00. 
 
This private company is in fact re-selling certified copies of deeds that can be purchased directly from Mr. Clingan's office for about ONE-TENTH of that price. There have also been reports companies pulling the same scam in Florida. Click here for a notice from Mr. Clingan's office. In the unlikely case that you require a certified copy of a deed in the State of Florida, click here to search for it online on the State's website. Florida typically charges only $1.00 per page and $2.00 to have the deed certified.
Steps to Take in Advance of Death or Disability

Ready...Set...GoNo one wants to face the fact that our loved ones will not be with us forever. Facing our own mortality is frightening as well. Although none of us wants to contemplate a time when we or a loved one might become disabled or die, it is important to be prepared. There are many steps families can take in advance of death or disability to avoid future conflicts or uncertainties:

  • Don't be afraid to start the conversation. Whether you are a parent talking to your children, a husband talking to a wife, or an adult child talking to an aging parent, bringing up the topic of death and disability can be difficult, but it is an important conversation to have. A study by The Hartford found that parents were more willing to discuss estate planning issues than their children.

  • Make sure you or your loved ones have done estate planning. All estate plans should include, at minimum, two important estate planning instruments: a durable power of attorney and a will. The first is for managing property during your lifetime, in case you are unable to do so yourself. The second is for the management and distribution of property after death. Revocable (or "living") trusts can also help you avoid probate and manage your estate both during your life and after you're gone. In addition, you or your loved ones should consult with an estate planning professional about the best way to minimize estate taxes. For more on estate planning, click here.

  • Plan for the worst. You and your loved ones need to be prepared in the event that one of you becomes disabled and will no longer be able to make your own decisions. The durable power of attorney mentioned above is an important instrument. You will also need a health care proxy (sometimes called a health care power of attorney), which gives someone else the medical authority to communicate your wishes about medical treatment. For more information on medical directives, click here.

  • Make sure you or your loved ones draw up a list to help your executors carry out your estate plans. The list should contain information on the location of assets, such as bank accounts, property, and stocks and bonds; the location, keys, and passwords to any safe deposit boxes; the identity of important professionals who might have information about your estate; and the location of important records, such as loan, insurance, and tax documents. The list can also contain things you want done immediately after you die, such as calling relatives or notifying employers.

  • Determine you or your loved ones' wishes regarding funeral arrangements. You may want to pay for your funeral ahead of time to take the burden off of family, but you need to be careful and shop around. Click here for information and tips on making advance funeral arrangements. If you can't make arrangements ahead of time, put your wishes in writing so the whole family knows what you want.

  • Figure out who is going to get what personal property and heirlooms. Preparation and planning in advance can avoid family squabbles after you or your loved ones die. For more information, click here.
Powers of Attorney Come in Different Flavors 

Popsicles of different flavorsA power of attorney is a very important estate planning tool, but in fact there are several different kinds of powers of attorney that can be used for different purposes. Before executing this crucial document, it is important to understand what your options are.

A power of attorney allows a person you appoint -- your "attorney-in-fact" or agent -- to act in your place for financial or other purposes when and if you ever become incapacitated or if you can't act on your own behalf. There are four main types of powers of attorney.

  • Limited. A limited power of attorney gives someone else the power to act in your stead for a very limited purpose. For example, a limited power of attorney could give someone the right to sign a deed to property for you on a day when you are out of town. It usually ends at a time specified in the document.

  • General. A general power of attorney is comprehensive and gives your attorney-in-fact all the powers and rights that you have yourself. For example, a general power of attorney may give your attorney-in-fact the right to sign documents for you, pay your bills, and conduct financial transactions on your behalf. You could use a general power of attorney if you were not incapacitated, but still needed someone to help you with financial matters. A general power of attorney ends on your death or incapacitation unless you rescind it before then.

  • Durable. A durable power of attorney can be general or limited in scope, but it remains in effect after you become incapacitated. Without a durable power of attorney, if you become incapacitated, no one can represent you unless a court appoints a conservator or guardian. A durable power of attorney will remain in effect until your death unless you rescind it while you are not incapacitated.

  • Springing. Like a durable power of attorney, a springing power of attorney can allow your attorney-in-fact to act for you if you become incapacitated, but it does not become effective until you are incapacitated. If you are using a springing power of attorney, it is very important that the standard for determining incapacity and triggering the power of attorney be clearly laid out in the document itself.

Regardless of what type of power of attorney you use, it is important to think carefully about who will be your attorney-in-fact. Your attorney-in-fact will have a lot of control over your finances, and it is crucial that you trust him or her completely. For more information on choosing an attorney-in-fact, click here.

While many pre-packaged do-it-yourself power of attorney forms are available, it is a good idea to have an attorney draft the form specifically for you. There are many issues to consider and one size does not fit all. Contact your elder law attorney to learn more.

For more information on powers of attorney, click here

Book Review Circles of Care: How to Set Up Quality Home Care for Our Elders
 
Circles of CareAnn Cason. Circles of Care: How to Set Up Quality Home Care for Our Elders. Shambala Publications, Inc. Boston, Mass. 2001. 181 pages.

$17.05 at Amazon. Click on book to order.

Most seniors, when given a choice, would prefer to remain at home instead of go to a nursing home. Circles of Care explains how to provide quality care for seniors in their own homes.

Drawing on 20 years of experience as a caregiving coordinator and consultant, author Ann Cason focuses on how to relate to and understand what a senior is going through in order to provide the best help. According to Cason, it is necessary to enter the elder's world in order to assess the elder's needs. She addresses many of the challenging behaviors that can typically arise, such as moodiness, combativeness, confusion and memory loss, and offers sensitive strategies for dealing with them. Cason explains how to determine when help is needed and what caregiving services are available. She also provides detailed information on caregiving, including an explanation on how to give a bed bath and sample menu suggestions.

Other chapters describe how to build a caregiving team, create daily schedules and routines, enrich the elder's environment, help the elder let go, work with difficult behaviors, and care for a dying loved one. Recognizing that sometimes a nursing home is necessary, Cason includes a chapter on finding a good facility.

Circles of Care incorporates case studies and stories that provide real-world examples as well as lots of practical tips. This wise book is a valuable resource for both family members and professional caregivers.

Getting Medicare While Traveling or Living Overseas

Passport-change purse-overseasMany retirees look forward to traveling in their retirement, and more and more are actually retiring overseas, in part as a way to stretch savings. But what happens to retirees' federal benefits while they are out of the country? The short answer is that although Social Security benefits are available to retirees in other countries, Medicare generally is not. In this installment we look at Medicare.

Traditional Medicare does not provide coverage for hospital or medical costs outside the United States (although Medicare does cover residents of Puerto Rico, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands). In rare cases, Medicare may pay for inpatient hospital services in Canada or Mexico. (For details, click here.)

Some Medicare Advantage (private Medicare) plans may provide coverage benefits for health care needs when enrollees travel outside the United States. (Check with your plan before traveling.) But those retiring overseas -- or travelers enrolled in the traditional Medicare program or whose Medicare Advantage plan does not cover foreign travel -- will need to purchase health insurance from another source.

Medicare beneficiaries who are traveling and who have no other coverage must either buy short-term travel insurance or a Medigap policy that covers foreign emergencies. Medigap plans C through J offer travel emergency coverage, but the benefit applies only during the first 60 days of any trip. This Medigap benefit covers 80 percent of emergency care administered outside the country. A $250 deductible and $50,000 lifetime maximum apply. In addition, many travel agents and private companies offer insurance plans that will cover health care expenses incurred overseas, including evacuations. The State Department's Bureau of Consular Affairs provides information on medical insurance while overseas, including a list of companies that offer travel medical insurance, at its Web site.

Retirees who are moving to a foreign country cannot use Medicare to pay for health care while they are living overseas. The options for retirees are to buy private coverage, to pay into a government-sponsored system in their new country of residence, or to go without coverage. If the retiree is moving to a country with a strong national plan, he or she may be able to pay into the plan and receive coverage similar to that accorded residents of the country. If national insurance isn't an option, many companies offer "expatriate" health insurance plans. Choosing the right plan depends on where the retiree is moving. For example, if a retiree is traveling somewhere remote or with poor local health care, evacuation coverage may be important. Another country may offer excellent health care, but each doctor visit may cost a lot of money, so a plan that covers outpatient doctor visits may be necessary there. No matter where the retiree is moving, another consideration is whether the plan covers pre-existing conditions.

Whatever option retirees choose while abroad, if they return to the United States they will still be covered by Medicare Part A. Medicare Part A covers institutional care in hospitals and skilled nursing facilities, as well as certain care given by home health agencies and care provided in hospices. There are no premiums for this part of the Medicare program and anyone who is 65 or older and is eligible for Social Security automatically qualifies.

Medicare Part B, which covers outpatient services, charges a monthly premium. Unless retirees continue to pay the premiums while they are overseas, they will not automatically be covered by Medicare Part B when they return to the United States. Retirees who drop Part B and then move back to the United States will have to pay an enrollment penalty. Premiums increase by 10 percent for each year that an individual is not enrolled in Part B. Therefore, retirees who think they may return to the United States may find it worthwhile to continue paying Part B premiums while they live abroad.

For more about the Medicare program, click here.

Social Security Adds New Online Medicare Application

Social Security AdminTime was when Medicare eligibility and one's full retirement age for Social Security were both 65, but that's no longer the case. While Medicare's age of eligibility remains 65, Social Security's full retirement age is now 66 for those just becoming eligible, and this will soon rise to 67. But just because you're not signing up for Social Security yet doesn't mean you should postpone signing up for Medicare. In fact, there are financial penalties for delaying Medicare enrollment.

The Social Security Administration (SSA) has just launched a new service that allows people to enroll online for their Medicare benefits even if they are not yet ready to file for Social Security benefits. About a half million Americans enroll in Medicare each year without applying for Social Security benefits.

"This new online Medicare application will make it easier for more people to enroll in Medicare," says Joe Baker, president of the Medicare Rights Center. "It saves them a trip to the Social Security office, and they can complete the application at home, at their own pace." The SSA says its Medicare application takes less than 10 minutes to complete.

You can use the online Medicare application if you are at least 64 years and 8 months old, do not want to start receiving Social Security benefits in the next four months, and live in the U.S. or one of its territories or commonwealths. The application guides you through a brief set of questions that will help you consider either filing for Social Security and Medicare benefits, or filing only for Medicare. There are links to more information for people who have questions.

To use the new online application, click here. (You can also see a promotional video starring the "Patty Duke Show" cast.)

For answers to questions about whether or not you should enroll in Medicare, visit the Medicare Rights Center's Medicare Interactive, a free, web-based counseling tool.

For an ElderLawAnswers article on "Coordinating Medicare and Employer Coverage," click here.

For more on Medicare from ElderLawAnswers, click here. 

 
The Greatest Compliment ...
 
Thank You!We always appreciate referrals from our satisfied clients, friends, business  partners, and family members. 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.

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 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,

 
EM & HSK 

Ellen S. Morris, Esq. & Howard S. Krooks, Esq., CELA, CAP

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.

Elder Law Associates, P.A.
7000 W. Palmetto Park Road | Suite 205 | Boca Raton | FL | 33433
20801 Biscayne Blvd. | Suite 304 | Aventura | FL | 33180
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