Category Archives: Custodial Care
Nancy and Nick have three children — Emmitt, Nicole, and Alexa. Very warm and loving parents, Nancy and Nick make education a top priority, and hope to instill their deep-rooted culture and values in their children. Neither Nancy nor Nick want to think about not being there to raise their children. If Nancy and Nick choose not to make a decision and take no action, who will care for their children should the unthinkable happen to them?
Various scenarios, none of them ideal, could happen should Nancy and Nick not choose a guardian for their children. Their relatives could end up arguing in court over who gets the children — or their relatives could agree but not on the people that Nancy and Nick would have chosen. Even worse, a court could end up choosing their guardian for them. That’s why it’s important for Nancy and Nick and for your family to nominate a guardian while it’s still up to you. Here are some actions to take to help you make your best choice:
- Make a list of all the people you know who you would trust to take care of your children, including family members, extended family, close friends, people you know from your place of worship, or even child care providers with whom you and your children have a special relationship.
- Consider values and philosophies. Ask yourself which people on your list most closely share your values and philosophies with respect to your religious/spiritual beliefs, moral values, child-rearing philosophy, educational values, and social values.
- Consider whether each couple or person on your list is a good fit. Would they truly love your children, be good role models, have patience parenting your children, show affection, and are they mature enough to take on the guardian role?
- Think about how raising your children would fit into their lifestyle.
- If they’re older, do they have the necessary health and stamina? Would they really want to be parents of a young child at their stage in life?
- Do they have other children? How would your children get along with theirs?
- How close do they live to other important people in your children’s lives?
- If a married couple divorced or one spouse died, would you be comfortable with either of them acting as the sole guardian, or would want an alternate married couple to become guardian instead.
- Trust your instincts. If one couple or person meets all of your criteria, but doesn’t feel right, don’t choose them. By the same token, if someone feels much more right than any of the others on your list, there’s probably a good reason for it and you probably want to trust your gut instinct. Make your primary choice, then some backup choices. Ideally, both you and your spouse agree on your choices.
- Use a Child Protection Plan to select a temporary custodian as well as your Last Will and Testament to nominate your permanent Guardian. Temporary custodians may be appointed if both parents become temporarily unable to care for their children – for example, as the result of a car accident. Depending on your choice for permanent guardians (for example, if your permanent guardians work and live in another state or another country and will have to take leave and make travel arrangements to come and care for your children), you may want to designate different people to act as temporary custodians. Temporary custodians are designated via a Child Protection Plan rather than via your Last Will and Testament.
- Consider a guardianship panel. Because it’s difficult to predict what your children’s needs will be as they grow older, consider appointing a “guardianship panel” to decide who would be the best guardian when and if it becomes necessary. Choose trusted relatives and friends to make up the panel. The panel can consult with your children and assess their needs and desires to make the most appropriate choice based on the current situation.
Once you’ve narrowed down your choices, talk to everyone involved. Be sure to confer with the people you’d like to choose to ensure they’re willing to be chosen and would feel comfortable acting as guardians. If your children are old enough, you may even want to talk with them to get their input. Create a Letter of Intent to convey information about your children, your parenting values and your hopes and dreams for your children. Set up an appointment with a Certified Elder Law Attorney, such as Evan H. Farr, to prepare the legal documents that are required to put your wishes into action.
If you’ve chosen friends over relatives or a more distant relative over a closer one, be sure to explain your decision in writing. That way – in the unlikely event your choice is challenged by people who feel they should have been chosen – a court should readily uphold your decision, knowing you’ve made your choice for good, solid reasons.
Set up a trust that will hold the assets you pass to your children, and instruct the trustee to provide necessary financial assistance to the guardians. Create specific instructions about special things you’d like the trust funds used for (for example, a particular summer camp, piano lessons etc.).
Having children means always planning ahead and thinking about the future, even as you try to enjoy the present and watch your children grow and thrive. Nominating a guardian (and, if necessary, a temporary custodian) for your children gives you the peace of mind that your children will be protected if something happens to you. Call 703-691-1888 and make an appointment for a no-cost consultation at The Fairfax Elder Law Firm of Evan H. Farr, P.C.
As Halloween approaches this year, I can’t help but draw an analogy between the nights I spent meandering my neighborhood as a kid looking for handouts, and our current economic times. I recall my grade-school friends and I operating our minds at their collective capacities, as we planned the best streets to target and the best routes to take to get from house to house most efficiently. Some of the parents surpassed expectations and gave out the good stuff — like king size candy bars! Others doled out the less-desirable treats, such as candy corns, smarties, or the dreaded raisins. Some neighbors, when they were gone for the evening, left out giant bowls of candy for us trick-or-treaters to help ourselves. Other neighbors were always gone, and their houses completely dark. But fortunately for us candy-loving kids, most or our neighbors participated in the fun of Halloween. In fact, many of our neighbors offered a variety of different candy to choose from each year. We never knew how much candy we’d wind up with at the end of the night, or how much of the “good stuff” we’d have in our bag.
Similar to the unpredictability of household Halloween generosity encountered by children, the Federal Government is providing the public with what can appropriately be called a “mixed bag” of economic solutions. It might just depend on what house, or rather, what state you live in.
Social Security and Supplemental Security Income recipients will not receive an increase in 2011 because there has been no increase in the federal Consumer Price Index. Read the Social Security News Release Here (released October 15, 2010).
Though the federal Social Security Administration is not able to provide an increase for its beneficiaries because of long-standing federal law that ties Social Security and Supplemental Security to the Consumer Price Index, other federal agencies, and some state agencies, are doing what they can to help alleviate the financial struggles of the elderly and disabled.
One prime example: the federal Administration on Aging and the Centers for Medicare and Medicaid Services (both part of the U.S. Dept. of Health and Human Services) recently awarded more than $2 million in grant funding to the Virginia Department for the Aging and the Virginia Department of Medical Assistance Services, the latter being the Virginia agency that runs our state’s Medicaid system. Read the Commonwealth of Virginia Press Release Here (released October 6, 2010).
This grant funding to Virginia’s Medicaid system comes with high hopes and great expectations. The over $2 million in funding will be used to bolster services for two key underprivileged groups – the elderly and the disabled – by alleviating burdens in the following areas:
• Prescription drug coverage
• Long-term care services
• Transition support from nursing homes to community based services
• In-home support services for sufferers of Alzheimer’s disease
In providing these much-needed funds to Virginia for the improvement of Virginia’s Medicaid program and the development of additional services for the elderly and the disabled, the Federal Government has demonstrated its continuing commitment to improving and strengthening the Medicaid system throughout the United States. As Senator Rockefeller wrote in 2005, on the 40th anniversary of the Medicaid program, ”taking care of our most vulnerable people is a moral obligation . . . our representative democracy has a responsibility to do for the future what we have repeatedly done in the past: protect, preserve, and strengthen Medicaid.”
Medicaid is what pays for the vast majority of nursing home care in the United States. With both the Federal Governemtn and the Virginia State Goverment now strenghtening the Medicaid program, smart long-term care planning (i.e., Medicaid Asset Protection Planning) has never been as important as it is now. According to the Virginia Department for the Aging, the population of elderly adults in Virginia will double in less than 20 years — to the point where one in five residents of Virginia is expected to be aged 65 or older.
A statistic I cited in a previous article demonstrates the importance of Medicaid Asset Protection Planning — about 70% of Americans who live to age 65 will wind up needing long-term care at some point in their lives. For the more than 40% who will require long-term placement in a nursing home, the cost of such care will be financially devastating without a smart Medicaid Asset Protection Plan focused on structuring assets in a way that protects those assets while allowing earlier Medicaid eligibility.
For most seniors over age 65, Medicaid is the equivalent of government-subsidized long-term care insurance, just as Medicare is governement-subsidized health insurance. But remember — the fact that Medicaid is “government-subsidized” does not mean that it’s a “handout.” On the contrary, it’s your tax dollars that fund the Medicaid program, just as it’s your tax dollars that fund Medicare. It’s also important to note that the Federal Government and Virginia State Government both encourage Americans to engage in smart Medicaid Asset Protection Planning — for example: there are laws that protect spouses of nursing home residents; there are laws that encourage Americans to engage in Medicaid Asset Protection by purchasing Long-Term Care Insurance “Partnership” policies; there are laws that allow the exemption of certain types of assets when applying for Medicaid; there are laws that permit individuals to qualify for Medicaid even after transferring assets to a spouse, or to a disabled family member, or to a caregiver child. To smartly plan and protect assets while accelerating qualification for Medicaid is no different than planning ahead to maximize your income tax deductions in order to minimize your income taxes. It is no different than taking advantage of tax-free municipal bonds. It is no different than planning your estate to avoid estate taxes (which, incidentally, a lot more people are going to be doing again next year when the Federal Estate Tax returns with a vengeance – with an Exemption Equivalent Amount of only $1 million – but that’s for another article . . . ).
At a time when much federal spending leads to controversy, Medicaid is an example of the government legitimately promoting the best interests of society. Similar to how my mom always made sure I ate a well-balanced dinner before embarking upon my annual October 31st sugar binge, our Federal Government and State Government are truly looking after the citizens of America (even in these gloomy economic times) by directing funds to programs that benefit and protect our most fragile citizens — the elderly and disabled.
The Farr Law Firm specializes in Family Protection Planning (i.e., Estate Planning, Incapacity Planning, and Medicaid Asset Protection Planning), and we are here to help you. If you have not yet done your Family Protection Planning, I encourage you to call us to take advantage of a free consultation to determine the planning solution that’s best for you and your family.
A 2003 study of caregivers has proven that the off-repeated adage “stress can kill you” is true. The focus of the investigation was the effect the stress of caregiving had on caregivers.
A team of researchers at Ohio State University Medical Center has found a chemical marker in the blood that shows a significant increase under chronic stress and is linked to an impaired immune system response in aging adults. The team, led by Dr. Janice Kiecolt-Glaser, reports in the June 30, 2003 issue of Proceedings of the National Academy of Sciences on a 6-year study of elderly people caring for spouses with Alzheimer’s Disease. With the caregivers, the team found a four-fold increase in an immune system protein — interleukin 6 (IL-6) — as compared to a control group of non-caregivers. Only the stress of caregiving correlated to the marked increase of IL-6 in the caregiver group. All other factors, including age, were not significant to the outcome. Even the younger caregivers saw an increase in IL-6.
The study also found that the caregivers had a 63% higher death rate than the control group. About 70% of the caregivers died before the end of the study and had to be replaced by new subjects. Another surprising result was that high levels of IL-6 continued even three years after the caregiving stopped. Dr. Glaser proposes that prolonged stress may have triggered a permanent abnormality of the immune system.
The problem is if this response is initiated repeatedly over a long period; it can have a dangerous effect on the body. This repetitive initiation of the stress response is common among caregivers — especially those caring for loved ones with dementia. Providing supervision or physical assistance many hours a week and over a period of years turns out to be extremely stressful. This type of stress is often unrelenting, occurring day after day and week after week. And the long-term effects of this stress are more pronounced in middle-aged and older people who are precisely the group most likely offering long-term care to loved ones.
If you are a caregiver, please give us a call. Through a properly-designed Life Care Plan for your loved one, the Farr Law Firm can help you minimize or eliminate much of your stress.
When a person requires someone else to help with physical or emotional needs over an extended period of time, this is long-term care. This help may be required for many of the activities or needs that healthy, active people take for granted and may include such things as:
- Using the bathroom
- Helping with incontinence
- Managing Pain
- Preventing unsafe behavior
- Preventing wandering
- Providing comfort and assurance
- Providing physical or occupational therapy
- Attending to medical needs
- Answering the phone
- Meeting doctors’ appointments
- Providing meals
- Maintaining the household
- Shopping and running errands
- Providing transportation
- Administering medications
- Managing money
- Paying bills
- Doing the laundry
- Attending to personal hygiene
- Helping with personal grooming
- Writing letters or notes
- Making repairs to the home
- Maintaining a yard
- Removing snow
The need for long-term care help might be due to a terminal condition, disability, illness, injury, or infirmity due to advanced age. Estimates by experts are that at least 60% of all individuals will need extended help in one or more of the areas above during their lifetime.
When the need for care lasts only for a few weeks or months, it is typicallyed called “short-term care” or “rehab care.” Typical reasons for short-term care include:
- Rehabilitation from a hospital stay
- Recovery from illness
- Recovery from injury
- Recovery from surgery
True long-term care, meaning care needed indefinitely, or at least for many months or years, is typically needed due to the following conditions:
- Chronic medical conditions
- Chronic severe pain
- Permanent disabilities
- Ongoing need for help with activities of daily living
- Need for supervision
Long-term care services may be provided in any of the following settings:
- In the home of the recipient
- In the home of a family member or friend of the recipient
- At an adult day services location
- In an assisted living facility or adult foster home
- In a hospice facility
- In a nursing home
Custodial Care vs. Skilled Care
Custodial care and skilled care are terms used by the medical community and health care plans such as health insurance plans, Medicare, Medicaid, and the Veterans Administration. They are used primarily to differentiate care provided by medical specialists as opposed to care provided by aides, volunteers, family or friends. The use of these terms and their application is important in determining whether a health care plan will pay for services. Generally, skilled services are paid for by a health care plan and custodial services, not in conjunction with skilled care, are not covered. However, custodial services are almost always a part of a skilled service plan of care and, by being included, custodial services are paid by the health care plan as well.
According to the American College of Medical Quality:
” Skilled care is the provision of services and supplies that can be given only by or under the supervision of skilled or licensed medical personnel. Skilled care is medically necessary when provided to improve the quality of health care of patients or to maintain or slow the decompensation of a patient’s condition, including palliative treatment. Skilled care is prescribed for settings that have the capability to deliver such services safely and effectively.
Custodial care is the provision of services and supplies that can be given safely and reasonably by individuals who are neither skilled nor licensed medical personnel. The medical necessity and desired results of skilled care must be clearly documented by a written treatment plan approved by a physician. A patient may have skilled and custodial needs at the same time. In these circumstances, only those services and supplies provided in connection with the skilled care are to be considered as such. The treatment plan must include:
- The applied therapies;
- The frequency of the treatment which is consistent with the therapeutic goals;
- The potential for a patient’s restoration within a predictable period of time, if applicable;
- The time frame in which the prescribing physician will review the case for the purpose of evaluating a patient’s status and before reassessing the medical necessity of ongoing treatment; or
- The maintenance, palliative relief, or the slowing of decompensation in a patient’s status, if applicable.
- Determinations of the medical necessity of skilled care must be based on the applicable standard of care.”
A skilled care provider can also provide services normally thought to be provided by custodial caregivers. Such things as help with activities of daily living and so-called instrumental activities of daily living are often furnished by skilled providers in the course of their treatment. Or a skilled care plan may call for services that can be delivered by a custodial caregiver but it would still be under the skilled plan of care for that individual. On the other hand people who deliver custodial services may from time to time perform those activities supposedly reserved for skilled providers. Such things as taking blood pressure, administering medicines, giving shots or changing wounds might be provided under certain circumstances by a custodial provider.
The terms skilled and custodial do not refer to specific types of long-term care services but rather who delivers those services. Also the delivery of skilled services must be done under a written plan of care which often includes custodial care services.
Does Medicare Cover Custodial Care?
Yes, but only for short-term care, not for long-term care. Medicare pays for custodial care in a nursing home, but only if the patient is in the nursing home in a skilled care setting for which it provides payment. Medicare will not pay for custodial care in the absence of a skilled care plan. If you are enrolled in a traditional Medicare plan, and you’ve been in the hospital at least three days, and you are admitted directly from the hospital into a skilled nursing facility for rehabilitation or skilled nursing care, then Medicare may pay the full cost of the nursing home stay for the first 20 days, and may continue to pay part of the cost of the nursing home stay for the next 80 days — with a per day deductible that you must pay privately (although there are Medicare supplement insurance policies that sometimes cover that deductible).
Medicare-covered Nursing Home Stay
A patient receiving skilled care in a nursing home from Medicare not only receives care from skilled providers such as nurses, therapists or doctors but also receives care from custodial providers such as aides or CNA’s. This care usually consists of help with bathing, dressing, walking, toileting, incontinence, feeding and medicating. Medicare does not exclude the custodial services but pays the entire bill because custodial care is a necessary part of the skilled care plan in a nursing home.
Medicare-covered Home Care
Custodial care is always a part of a skilled care plan for home care. The patient receives skilled care from a nurse or therapist and custodial care from an aide for help with bathing, dressing, ambulating , toileting, incontinence, medicating and possibly feeding. Medicare pays for both types of services.
Medicare-covered Hospice Care
The hospice team consists of a doctor, a nurse, a social worker, a therapist when needed, a counselor and an aide to provide custodial care. Help with activities of daily living is provided at home or in a Medicare approved hospice facility. Custodial care is always a part of a hospice plan of care and Medicare routinely pays for these services.
Please note that there is no such thing as a custodial nursing home. All nursing homes are by definition skilled care facilities because they have nurses who are skilled care providers. Also be aware that not all states license intermediate care facilities which might provide less than 24 hour registered nursing care. “Skilled care patients” in nursing homes are referred to as such because they are receiving payment from Medicare or sometimes payment from private health insurance plans. Practically all nursing home residents have medical needs but Medicare and other insurance plans will only pay for patients that have certain acute medical needs where recovery is anticipated. Patients with chronic medical problems are typically not covered by Medicare but will be covered by Medicaid provided that all of the financial and medical eligibilty crieria for Medicaid are met.
For more information about long-term care, nursing homes, qualifying for Medicaid, and other related topics, please click on the links below which will take you to the corresponding chapter in my book — The Virginia Nursing Home Survival Guide. You may also access all of these chapters from my Website under the “Resources” tab:
chapter 1 – THE CAREGIVER’S ROLE
chapter 2 – WHAT IS A NURSING HOME?
chapter 3 – SELECTING A FACILITY
NURSING HOME EVALUATION TOOL
chapter 4 – MOVING YOUR LOVED ONE
chapter 5 – HOW TO PAY FOR NURSING HOME CARE
chapter 6 – MEDICAID PLANNING
chapter 7 – MEDICAID FAQs
chapter 8 – HOW TO GET THE BEST POSSIBLE CARE
chapter 9 – THE RIGHTS OF NURSING HOME RESIDENTS
chapter 10 – RECOGNIZING ABUSE & NEGLECT
chapter 11 – PROTECTION FROM ABUSE AND NEGLECT
chapter 12 – IF YOU SUSPECT ABUSE OR NEGLECT
chapter 13 – ESTATE PLANNING & POWERS OF ATTORNEY
chapter 14 – LEGAL ASSISTANCE
APPENDIX A: VIRGINIA NURSING HOMES BY REGION
APPENDIX B: VIRGINIA AND NATIONAL RESOURCES
APPENDIX C: AREA AGENCIES ON AGING
APPENDIX D: ELDER ABUSE RESOURCES
APPENDIX E: GERIATRICIANS
APPENDIX F: GERIATRIC CARE MANAGERS