Category Archives: Family Caregivers

Choosing a Guardian for Your Children: Things to Consider

Written by Evan Farr

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.

Important Medicare Change: Patients No Longer Need to Show Progress to Receive Nursing Coverage

Written by Evan Farr

Medicare coverage of short-term rehabilitation in a nursing home is about to undergo a major policy change, resulting in beneficiaries with chronic conditions such as Alzheimer’s disease, Parkinson’s disease, ALS (Lou Gehrig’s disease), diabetes, multiple sclerosis, hypertension, arthritis, heart disease, and stroke no longer need to show ongoing improvement to maintain Medicare coverage.

For decades, when short-term rehabilitation patients in nursing homes failed to show improvement but still needed skilled nursing in the form of custodial care or therapy, Medicare would routinely terminate their Medicare coverage, forcing these patients prematurely into private pay or, if they could financially qualify, Medicaid.  This need for ongoing “improvement” was a pervasive, though unwritten ”rule of thumb” followed by Medicare and by Medicare contractors when doing Medicare evaluations in nursing homes.  However, nothing in the Medicare statute or its regulations has ever stated that “improvement” is required for continued skilled care. 

A class action lawsuit, Jimmo v. Sebelius, was filed against the Obama administration in January 2011 in federal court. This case and a similar case in Pennsylvania aimed at ending the government’s use of the “improvement standard” were both settled by the Government.  This settlement should result in Medicare no longer focusing on “the presence or absence of an individual’s potential for improvement.”  Rather, Medicare must continue to provide short-term care whether or not the patient is improving, provided the patient needs skilled care.

It must be understood that Medicare coverage for nursing home care is still a very limited type of short-term benefit, as it only covers a maximum of 100 days per benefit period, and only if the patient requires skilled nursing care. However, under the new settlement, Medicare coverage should no longer be terminated just because the patient’s medical condition is no longer improving. On the contrary, coverage should remain available for services that are needed to maintain the person’s condition or to prevent further deterioration.

In summary, Medicare coverage in the past has often been erroneously denied for individuals with chronic conditions, for people who are not improving, or who are in need of services to maintain their condition. With this new government settlement, it should no longer be necessary for an individual’s underlying condition to be improving in order to continue to get Medicare coverage!   I emphasize the word should because the people who implement these policies may not conform to the new settlement as quickly as they should, so coverage appeals may be necessary in the short run until the local workers on the ground all get educated about this new shift in governmental policy. 

Luckily, the Medicare program has an appeal system to contest improper termination of coverage. Beneficiaries and their advocates should use this system to appeal Medicare determinations that unfairly deny or limit coverage.

For more information about this settlement, see: http://www.medicareadvocacy.org/hidden/highlight-improvment-standard

To appeal what you believe is an improper Medicare termination in a nursing home, please download this self-help packet:  

MEDICARE SKILLED NURSING FACILITY SELF HELP PACKET

To appeal what you believe is an improper Medicare termination of home health care, please download this self-help packet:  

MEDICARE HOME HEALTH SELF HELP PACKET

 

 

Planning for Long-Term Care (Part 1)

Written by Evan Farr

Are you one of the millions of Americans over age 50 who has not yet started planning for long-term care?

As financially responsible adults, most of us are prepared for some unexpected disasters – we pay for health and property damage insurance, and many of us have taken some steps toward funding for our retirement. But very few of us have prepared for one of the most devastating of unexpected events – the need for long-term care. According to most estimates, more than 60% of us will need long-term care at some point in our lives. If you are a member of the “sandwich generation” – responsible for an older parent – the odds that either you or your aging parent will need such care are even higher, and the costs to your lifestyle, finances, and security can be catastrophic. Consider the following long-term care statistics:

• About 70% of Americans who live to age 65 will need long-term care at some time in their lives, over 40 percent in a nursing home.
• As of 2011, the average cost of a nursing home in Northern Virginia was over $100,000 per year.
• A recent insurance company study found that 46 percent of its group long-term care claimants were under the age of 65 at the time of disability.

Contrast the above long-term care statistics with statistics for automobile accident claims and homeowner’s insurance claims:

• An average of only 7.2% of people per year file an automobile insurance claim.
• An average of only 6.15% of people per year file a claim on their homeowner’s insurance.

The need for long-term care drastically alters or completely eliminates the four principal retirement dreams of elderly Americans:

1. Remaining independent in the home without intervention from others
2. Maintaining good health and receiving adequate health care
3. Having enough money for everyday needs
4. Not outliving assets and income

Unfortunately, the reality is that the majority of Americans make no plans for long-term care. Not only does this lack of planning affect older Americans, but it also often has an adverse effect on the older person’s family, with sacrifices made in time, money, and family lifestyles. The stresses of being a caregiver for an older parent often result in a deterioration of the caregiver’s own physical and emotional health. Because of changing demographics and improved health care, the current generation — more than ever — needs to actively plan for long-term care.

So what are basics of a good Long-Term Care Plan? First and foremost are two critical documents that need to be prepared by an experienced and knowledgeable Elder Law Attorney. These two essential documents are:

• A Financial Durable Power of Attorney containing Asset Protection Powers; and
• An Advance Medical Directive containing a Long-Term Care Directive.

The third essential document, which you can prepare on your own, is a Lifestyle Care Plan.

Part 2 of this article will explain and explore these three critical documents to give you a greater understanding of the need for and importance of these vital long-term care planning instruments.

These essential legal documents, however, are only part of the requirements for a good Long-Term Care Plan. The other important component is a sound financial plan for how to pay for good long-term care. There are three primary ways to plan in advance for how to pay for long-term care: (1) build up your income and life savings in order to be able to self-fund your future care needs; (2) protect your assets by purchasing long-term care insurance; or (3) protect your assets by using an asset protection trust designed to legally protect your assets and allow you to qualify for Medicaid, the governmental program that pays for about 70% of people living in nursing homes. For some families, a fourth way to pay for long-term care is a type of Veteran’s pension benefit called “Aid & Attendance.”

Unfortunately, option 1 (building up your income and life savings to self-fund future care) is not feasible for most Americans, especially in these troubled economic times. Accordingly, Parts 3 through 5 of this series will explain and explore these three methods of paying for long-term care. Part 3 will focus primarily on using long-term care insurance to protect your assets; Part 4 will explore the use of a special type of asset protection trust to protect assets and gain early access to Medicaid; and Part 5 will explain the Veteran’s Aid & Attendance benefit.

There are many things that you can do now to begin to put together a good Long-Term Care Plan. The most important thing you can do is to act now! You may have limited resources in the future or health problems that will prevent you from taking care of the things you can easily take care of today. The Farr Law Firm specializes in long-term care planning and we would be happy to assist you in your preparations. Please visit us at www.virginiaelderlaw.com or call 703-691-1888.

The Reverse Mortgage Saga Part 5: “How the Farr Law Firm is Helping Clients Stay at Home”

Written by Evan Farr
Reverse Mortgages rules change frequently

Credit: (Deirdre O'Neill) / CC BY-SA 2.0

“Presume not that I am the thing I was,” wrote William Shakespeare in the play, 2 Henry IV, reminding us that nothing stays the same.

On the personal side, we all change over time; our families and our other assets grow and shrink.

On the business side, entities both small and large come and go; Internet and technology companies appear out of nowhere and just as often disappear into cyber-obscurity; and the economy has a mind of its’ own.  In the wake of the global financial crisis that began in 2007 and the collapse of so many financial giants, it is no surprise that the reverse mortgage industry has recently undergone a major shakedown.

For the past five years, I have chronicled the reverse mortgage industry – starting when its popularity was peaking back in 2007.  I exposed two major problems in 2010, leading me to conclude that I could no longer, in good-faith, remain a supporter of the reverse mortgage.   Those two problems I shall refer to as the “competency problem” and the “expense problem.”

This week and next week I will add two more articles to my continuing series on reverse mortgages.  This week I will explain how the Farr Law Firm has taken steps to help clients get around the “competency problem,” and next week I will provide an update that may signal an end to the “expense problem.”

Here’s a summary of, and links to, my previous articles in this series:

  1. I praised reverse mortgages in 2007 as a viable way for seniors to remain at home as long as possible in my article, Reverse Mortgage Home Equity Loans.
  2. I viewed reverse mortgages as an excellent choice for various reasons, explained in detail in my early-2010 article, Using a Reverse Mortgage to Pay for Home Care.
  3. By mid-2010, I wrote about what I perceived to be discrimination in the lending industry I completely explain why that was such a nefarious issue to my clients and the elderly at-large in the article, Huge Problems with Reverse Mortgage Industry.
  4. Merely a few months later I found myself writing about the “expense problem” in, Reverse Mortgage Rules Changing Again , noting Congress’ plan to increase HUD’s Mortgage Insurance Premium.
  5. In February, 2011, I reported on the fact that one of the reverse mortgage industry’s largest lenders, Bank of America, had dropped out of the reverse mortgage business in No More Reverse Mortgages, Announces Bank of America.

The “Competency Problem” Persists: How The Farr Law Firm is “Combating” This Issue

"Combating" the "Competency Problem"

After interviewing dozens of reverse mortgage lenders, it became readily apparent that it is practically an industry guideline to refuse to honor the Power of Attorney (POA) presented for use in connection with obtaining a reverse mortgage: it is systemic.  I first discovered this travesty when two of my own clients were sent on scavenger hunts for documents certifying the applicant’s competency when the POA was signed, and a second document certifying the applicant is now not competent, both to be completed by the applicant’s doctor.

I described why these steps were creating an “insurmountable roadblock” for some clients in detail in my May 5th, 2010 article, Huge Problem with Reverse Mortgage Industry, because I believed then – and still do today – that these practices are not only unfair, but illegal and discriminatory.  However, because of this unfair practice, the Farr Law Firm has made adjustments to its’ Incapacity Planning services in order to help our clients navigate these obstacles.

How is the Farr Law Firm Helping?

When our clients come in to sign their Incapacity Planning documents (including their POA), we provide them with an Affidavit of Competency to give to their doctor to certify competency as soon as possible after the document signing, thus satisfying the first major “competency” hurdle.  Of course, it is the responsibility of the client to actually go to the doctor and get the affidavit signed, but having the affidavit ready to hand to the doctor to sign helps the client get it done.

For clients with borderline competency who might wind up needing to use a reverse mortgage, we provide them with an Affidavit of Competency for their doctor to complete prior to the document signing.

Why Reform is Still Needed

Most people want to remain at home, as long as possible, before entering a nursing home for long-term care.  A reverse mortgage is a great tool to accomplish this desire, because in most cases significant in-home health care will become necessary at some point.  In-home caregiving is not cheap, and thus adequate funds are needed to ensure one can be hired.  Although our firm has taken steps to get around the “competency” hurdle, most attorneys have not, and even though our current efforts will be helpful for clients signing our documents today, they are no help for clients who come to us or other attorneys with an old POA and no Competency Affidavit.  So once again, I implore you to visit HUD’s Housing Discrimination Complaint Website and file a “lending discrimination complaint” if you believe you have experienced discrimination.  If enough people cry foul, perhaps HUD will outlaw arbitrary, harmful “scavenger hunts.”

Stay Tuned for Next Week

Next week I will provide an update that may signal an end to the “expense problem.”

Image Credits:

Portrait of Shakespeare (Deirdre O’Neill) / CC BY-SA 2.0

“Combating” the “Competency Problem” – Free images from FreeDigitalPhotos.net

Tackling the “Sibling Situation”

Written by Evan Farr

Siblings often have trouble agreeing on anything, so why should it be any different when it comes to Mom and Dad’s elder care?  Unfortunately those of us in elder law see quite often how families have a very difficult time when it comes to determining what is best for aging parents.

In some cases, one sibling may be expected to take on an unreasonable portion of the elder care with other siblings not recognizing (or possibly not caring) that it is a hardship. Perhaps it’s because of geographical closeness, or financial stability, or even perceived favoritism of a particular sibling. Other times, siblings simply can’t agree on the best course of medical intervention or the choice of an assisted living facility.

A certified elder law attorney like Evan Farr can actually help to avoid or work through some of these issues.

The best approach is to start early.  Most siblings can likely agree that having your parents make their wishes known in advance is a good thing. (And sticking to them, no matter what, when they become necessary.)  The attorney can help them draw up some very important documents before they are even needed. Such as:

  • Medical Power of Attorney – This names the person responsible for making medical decisions when the parent is unable to do it for himself or herself.
  • Financial Power of Attorney – This is used to determine who will have control of the parents’ finances in order to keep the household going, pay medical bills, etc. during an illness or crisis.
  • Living Will – A living will helps to outline the parents’ wishes when it comes to medical interventions and end-of-life care.  Having this in place takes some of the burden off of the adult children who would otherwise be making these choices.

If possible, it’s best to have all of the siblings aware of and in agreement about these documents, as it can cut down on the amount of frustration later. Of course, children must also realize and respect that it is entirely up to the parents who they want to nominate as their primary Agents, and whether they may act independently or if they must act in cooperation with one or more siblings.

When things do become more intense and these documents come into play, it is still likely that siblings will have disagreements about what is best.  The one who has the largest responsibility for day-to-day elder care may become resentful, while another may also harbor resentments that someone else was chosen to take care of the parents’ finances.  Throw in the emotions that surface when facing your parents’ mortality, and there is potential for a major explosion and grief.

In order to diffuse the situation, an elder law attorney can direct you to other forms of outside help.  For example, some families choose to hire a “geriatric care manager.”  This person is able to manage many aspects of the parent’s care, and because he or she isn’t a family member, much of the associated drama is mitigated.  When a situation has become too out of hand, the siblings may need to agree to use a mediator.  This impartial listener can help to determine the best course of action for getting the parents the care they need while meeting the needs and wishes of the siblings as appropriately as possible.

In order to salvage an uncomfortable family situation, it may be advisable for members to seek family counseling.  This is most likely to work when all of the members are invested in a positive outcome.  The staff at the Farr Law Firm can help direct you to many resources for counselors and mediators here in the Northern Virginia area.

If you’re a parent that would like to start laying the proper groundwork for your children now, contact the Farr Law Firm to discuss drawing up the proper documents to make future life transitions as smooth as possible for your family.

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Are you feeling HOT, HOT, HOT?

Written by Evan Farr

As I’m sure you’ve heard (and felt!) this week has already shown record-breaking temperatures across the country, and this heat wave is only expected to move further east through the end of this week. Temperatures are expected to break 100 today and tomorrow with a heat index of up to 110! While high heat is usually just an inconvenient downside to summer, when it crests as high as this we should consider taking some precautions. Caregivers, make sure to pay special attention to your elderly loved ones during this unbearable heat wave.

According to The Weather Channel, heat is the number one weather-related killer in the United States outpacing hurricanes, tornadoes and other natural disasters. Soaring temperatures pose the biggest threat to the elderly, the very young, and the ill, as well as those who cannot afford air conditioning or live in the heart of big cities. Check on your elderly neighbors and invite them into your air conditioned home if they don’t have it. (Who knows, you might even trade some interesting stories over a cold glass of iced tea!) If you are living in a big city, the threat is two fold. High temperatures often continue through the night as concrete and asphalt release the heat they’ve absorbed throughout the day, leaving you in a baking oven even in the dead of night. Less obvious but just as threatening is the increase of pollutants in the air (due to the stagnation caused by lack of air circulation) that can irritate those with sensitive respiratory systems. For seniors already suffering from emphysema or asthma, this can be particularly threatening.

Caregivers and family members, keep on the lookout for symptoms of the two most common heat-related illnesses in the elderly: heat exhaustion and heatstroke. Heat exhaustion is defined as a “mild form of shock marked by heavy sweating, weakness, cold, clammy skin, a weak pulse, fainting and vomiting.” If not quickly caught and treated, the condition can possibly lead to heatstroke–a life threatening illness that can result in brain damage or even death if not treated by emergency medical help immediately.

Seniors and those caring for them should take extra care to prevent any ill-effects from this suffocating heat. Ensure that those most at-risk are in an air-conditioned and cool room if possible. If not, you may want to consider temporarily helping them move to a location that does have air conditioning to keep them more comfortable. Of course, make sure to drink plenty of water as well. Even the strongest of us can fall prey to the heat if we aren’t aware and don’t take the proper precautions.

Stay cool!

Source: The Weather Channel

Using a Reverse Mortgage to Pay for Home Care

Written by Evan Farr

Many of my clients ask me how I feel about reverse mortgages, and even more so this past week because of a favorable story that appeared in last week’s Washington Post entitled “Reverse Mortgages are Not the Next Subprime.”  This excellent article was written by the ”Mortgage Professor,” a Professor of Finance Emeritus at the Wharton School of the University of Pennsylvania (incidentally, my Alma Mater), and clears up much of the confusion and myths and fears surrounding the reverse mortgage.  I encourage all of you to read it.  Another good source of information about reverse mortgages is the Federal Trade Commission Fact Sheet

As a Certified Elder Law attorney, one of my primary goals is to help preserve the dignity and enhance the lives of my elderly clients.  For many of my clients, remaining in their homes as long as possible is one of their highest priorities.  I have been a long-time fan of reverse mortgages because they help my clients do exactly that — remain in their homes as long as possible.  

Why? Because in order to remain in your home as long as possible, you will most likely at some point need some home care.  “Home Care” can be health care and/or supportive care provided formally in your home by health care professionals (typically referred to as home health aides) or by paid or unpaid family members or friends (typically referred to as caregivers).  Often, the term “home care” is used to mean non-medical care, or custodial care, which may be provided by persons who are not nurses, doctors, or other licensed medical personnel.  The term “home health care” typically refers to care that is provided by a licensed health care professional — most often a Certified Nurse Assistant (CNA).  However, the terms are often used interchangeably, and for simplicity in this article I will use the term “home care” to refer to both types of care.

The goal of home care is typically to to allow you to remain at home and age in place, rather than being forced to move to an assisted living facility or nursing home.  Home Care providers render services in your own home. These services typically include a combination of health care services and life assistance services.

Health care services may include services such as wound care, administration of medication, physical therapy, speech therapy, and occupational therapy.  Life assistance services typically include help with daily tasks such as meal preparation, medication reminders, laundry, light housekeeping, errands, shopping, transportation, companionship, and help with the activities of daily living (ADLs), which typically refers to six activities (bathing, dressing, transferring, using the toilet, eating, and walking). 

Although some home care is provided by family members for free, most family caregivers need to be paid, and these payment arrangements should always be made pursuant to a written caregiver contract (prepared by an Elder Law Attorney) between the caregiver and the care recipient.  Because home care is quite expensive, having the proceeds from a reverse mortgage is often one of the  only ways that elders can afford to pay for appropriate home care. According to The 2009 MetLife Market Survey of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs, the 2009 national average hourly rate for home health aides increased by 5.0% from $20 in 2008 to $21 in 2009. The national average hourly rate for homemaker/companions increased by 5.6% from $18 in 2008 to $19 in 2009. 

Most of my clients, when they start out needing home care, will typically start with receiving 4 hours of care 3 days a week, which costs about $1,000 per month and is easily affordable for many people.  But over time, most of my clients progress to the point of needing upwards of 12 hours per day of home care, costing over $7,000 per month, and very few people can afford to pay for this type of care without eventually tapping into their home equity via a reverse mortgage.

The most common type of reverse mortgage is the Home Equity Conversion Mortgage (HECM), which completely protects your ability to remain in your home. So long as you pay your property taxes and homeowners insurance, and maintain your property, you can remain in your home forever. If the reverse mortgage lender fails, any unmet payment obligation to the borrower will be assumed by FHA. 

According to the Mortgage Professor’s article mentioned in my first paragraph, in 2009 about 130,000 HECMs were written, and feedback from borrowers has been mostly positive. In a 2006 survey of borrowers by AARP, 93% said that their reverse mortgage had a mostly positive effect on their lives.

For many of my clients, a reverse mortgage is the best way, and often the only way, for them to be able to afford to remain at home, despite the fact that reverse mortgages are expensive to obtain.  However, reverse mortgages are not for everyone, as there are other programs that may be able to help you remain in your home.  For instance, many of my clients are eligible for the Veterans Aid and Attendance benefit or for home-based Medicaid, or can be made eligible for these benefits through our process of Asset Protection

Whether you own your home outright or in a Revocable Living Trust or in my proprietary  Living Trust PlusTM Asset Protection Trust, if you think a reverse mortgage might be the solution you need, please contact me for a free consultation so I can evaluate your specific situation and advise you as to whether a reverse mortgage is your best option for allowing you to live comfortably in your home.

Who Was Supposed To Be Watching Grandma?

Written by Evan Farr

There is a popular tune played this time of year called “Grandma Got Run Over by A Reindeer” which relates that Grandma — after drinking too much eggnog — went out into the winter cold to get her medication and was run over by a reindeer. The question is . . .  “Who was supposed to be watching Grandma?”

Though this little tune is just for fun, it may very well raise alarms to many caregivers of the elderly. Caregivers know that even at a holiday party they cannot let down their diligent watch over their elderly loved one. As far-fetched as it may sound, with all the people and noise, an elderly family member with dementia or Alzheimer’s may be enjoying the family gathering and then suddenly become confused and walk to the door and leave.

For family caregivers the added stress of the holidays with decorating, shopping, parties and keeping up with all the family traditions is an overwhelming quest. Feelings of isolation, depression and sadness come with this added stress. There are millions of Americans who are caring for elderly frail loved ones and most of these caregivers will go through some of these emotions, especially this time of year.

There are some things you can do as a caregiver to help you and those you care for enjoy the holiday season.

First take care of yourself. Try to eat right, get plenty of sleep and exercise. This will help reduce stress and strengthen your ability to cope with caregiving responsibilities.

Prioritize your holiday traditions. Perhaps instead of cooking a large family dinner, have everyone bring his or her favorite dish. Use paper plates. Forfeit the traditional outside light decorating for a lighted wreath on the front door. Choose one or two parties or concerts to attend instead of trying to do it all.

Arrange for help. Call on other family members to help with the caregiving while you do your shopping or go out for the evening. If family is not available, ask your church group or a neighbor if they would donate a few hours.

Use community services. Many senior centers provide meals for the elderly and supervised activities, onsite, at no charge or a minimal charge. For locating senior services in your state, call your state Area Agency on Aging or check the national locator website at http://www.n4a.org/

Use adult day care services. Some assisted living facilities provide day activities and meals for seniors on a day by day basis. Other organizations called “adult day service providers” specialize exclusively in this sort of care support at a reasonable cost. These support services provide respite for caregivers from their caregiving responsibilities as well as social interaction for their elderly family members. There is a cost for adult day services, but the benefit for all is worth it.

Technology to the rescue. Here is a solution that would have kept “Grandma” from going out in the winter cold and getting run over by a reindeer. Companies that have created monitoring systems, security alarms and other safety equipment are “tweaking” them to adapt to the needs of seniors and their care givers.

Here are a few examples:

  • Ankle or wrist bands that monitor location and alert the provider when a person has gone beyond the designated perimeter, such as out the front door of the house.
  • Motion detectors. Set throughout the home, motion detectors allow someone outside the home to follow a senior as he or she moves through the house.
  • Smart medication dispensers. Live monitoring and dispensing of pills.
  • Emergency response alert. At a touch of a button on a desktop monitor, bracelet or necklace, emergency help is summoned.

Whether providing care in your home or helping senior family members in their own homes, your use of monitoring and “tech” help aids can provide extra safety for your loved ones, and peace of mind for you.

You are not alone. Join a caregiving help group. Your local senior center may have one or go on the internet to find one. Hearing about other caregivers’ problems and solutions and being able to share your own and ask questions is a great way to relieve stress and gain a new perspective. Check out websites like the National Family Caregivers Association at http://www.nfcacares.org/

Work with a Senior Care Professional. Recognize that you are doing the very best you know how. You are not a geriatric health care practitioner, geriatric care manager, home care nurse or aide, hospice provider or family mediation counselor, nor do you have the years of training and experience these professionals have, but you can definitely use their experience. In fact, using a senior care specialist will make caregiving easier for you and more beneficial for your elderly family member.

You can find a wide variety of care professionals in your area on the National Care Planning Council website at www.longtermcarelink.net and on our website at http://www.virginiaelderlaw.com/TrustedReferrals.htm.

One more thing to remember. As a family caregiver, the greatest gift you are giving this holiday season is “Love.”

Update on Virginia Life Estate Law

Written by Evan Farr

In June of last year, I wrote that “in the near future, life estates will no longer be considered exempt assets when applying for Medicaid.” This was due to the fact that the Virginia General Assembly had recently passed legislation instructing DMAS (the Department of Medical Assistance Services, the agency that oversees the Virginia Medicaid program) to amend the State Medicaid Plan to consider all life estates as countable resources in the determination of Medicaid eligibility. After my column, the new change in Medicaid policy did indeed go into effect. However, since then, the policy has been changed yet again. This article will summarize the changes in the life estate law and explain the current Virginia Medicaid policy.

Life Estate Rule Made More Restrictive
Prior to August 2008, the Virginia Medicaid State Plan treated life estates in real property as exempt resources, meaning that the ownership of a life estate did not affect Medicaid eligibility. Effective August 28, 2008, the aforementioned change in Medicaid policy made life estates created after that date countable resources under most situations, though subject to the same exclusions that apply to other residential real estate (e.g. the home subject to the life estate would be exempt if the Medicaid Applicant, or a spouse or dependent child, was living in the home or the Medicaid Applicant was using “reasonable efforts” to sell the property interest, or during the first 6 months of institutionalization provided the Medicaid Applicant intended to return home).

The American Recovery and Reinvestment Act of 2009 (Recovery Act) that President Obama signed into law on February 17, 2009 provided increased federal funding for state Medicaid programs. To be eligible for the enhanced federal financing, states may not have eligibility standards, methods or procedures in place that are more restrictive than those effective on July 1, 2008. States that implemented more restrictive policies after July 1, 2008 had until July 1, 2009 to reverse these restrictions to receive the increased funding.

More Restrictive Life Estate Rule Rescinded
The August 28, 2008 change in Virginia Medicaid policy regarding life estates created a more restrictive eligibility standard than was in existence in Virginia on July 1, 2008. Therefore, in order for Virginia to qualify for the increased federal funding, the more restrictive life estate policy needed to be reversed. As of May 15, 2009, the more restrictive life estate policy was rescinded. Accordingly, we now have two diferrent Medicaid rules for life estates, depending on the date that the life estate was created:

* As a general rule, life estates created prior to August 28, 2008, or on or after February 24, 2009, are considered exempt assets.
* Life estates created on or after August 28, 2008, but before February 24, 2009, are treated in the same manner as other real property, subject to any applicable residential real property exclusions as mentioned above.

How Can Life Estates Now Be Used in Medicaid Asset Protection Planning?
Life estates have been used throughout Virginia history for many different purposes – Medicaid asset protection planning, estate planning, probate avoidance, and tax planning.

One asset protection strategy involves a parent purchasing a life estate in the home of a child. This strategy is specifically allowed by Medicaid under current law so long as the parent actually resides in the home for at least a year after the purchase of the life estate.

Another planning strategy involves the sale of real estate to a child, coupled with the retention of a life estate. This allows the parent to effectively sell the home for a discounted value, retain the lifetime right to live in the home, and avoid probate, while also preserving a step-up in basis for capital gains purposes on the death of the parent.

A third planning strategy involves the gift of real estate to a child, coupled with a retained life estate. Although this gift will trigger a period of Medicaid ineligibility if application for Medicaid is made within five years of the transfer, because the value of the remainder interest is lower than the full value of the entire piece of real estate, a gift of a remainder interest results in a shorter Medicaid penalty period than a transfer of the entire house.

A parent retaining a life estate in a home that is being sold or gifted to a child has several advantages:

1) The parent continues to qualify for any property tax exemptions such as senior citizens exemptions that were available prior to the transfer.
2) The parent retains the legal right to live in the property.
3) The parent retains the legal ability to obtain a reverse mortgage (with the agreement of the remainder beneficiary).
4) The child receives a stepped-up basis for capital gains tax purposes.

Life Estate transactions, and the financial and life expectency calculations that must be made in connection with these transactions, are extremely complicated and must be done pursuant to the applicable Medicaid regulations. It is essential that these types of transactions be done under the direct supervision of an experienced Elder Law firm such as the Farr Law Firm.

Celebrating Our Family Caregivers

Written by Evan Farr

November is National Family Caregiver’s Month. Most family members who help their older loved ones don’t see themselves as caregivers. Yet a caregiver is anyone who helps an older person with household chores, errands, personal care, or finances. Most caregivers also don’t realize that caring for themselves is an important part of providing care for someone else. Among all the hardships of providing care to another, a caregiver faces time restraints and stresses that might be physical and/or psychological in nature. Particularly today, given the current economy, a caregiver may also feel the burden of financial stress. The simple truth is you can’t be a good caregiver if you don’t take care of yourself. The following advice comes from my book, The Virginia Nursing Home Survival Guide, which you can obtain from our firm or from Amazon.com.

What You Can Do

Take charge of your life. Don’t let your loved one’s illness or disability always take center stage. While you might fall into a caregiving role because of an unexpected event, somewhere along the line you need to step back and consciously say “I choose to take on this caregiving role.” It goes a long way toward eliminating the feeling of being a victim.

Set realistic goals. Caregiving creates many conflicting demands on your time; it is vital to set realistic goals. Recognize what you can and cannot do. Define your priorities and stick to them as much as you can. You have the right to set limits and, though it is hard, it is okay to say no.

Seek out help from family and friends. When others offer assistance, accept it and suggest specific things they can do. Some caregivers see asking for help as a sign of weakness, failure or inadequacy, when in fact it is just the opposite. Reaching out for assistance before you are beyond your limits is one characteristic of a strong person. While they might not be comfortable helping with bathing and dressing needs, friends and family can help by running errands, shopping for groceries, preparing meals or just visiting. They can call regularly, taking some pressure off you to be the primary social outlet.

Seek out appropriate geriatric medical professionals. A geriatrician is a medical doctor who is specially trained to prevent and manage the unique health concerns of older adults. Older persons may react to illness and disease differently than younger adults. Geriatricians are able to treat older patients, manage multiple disease symptoms, and develop care plans that address the special health care needs of older adults. Geriatricians are typically primary care physicians who are board-certified in either Family Practice or Internal Medicine and have also acquired the additional training necessary to obtain the Certificate of Added Qualifications in Geriatric Medicine.

National Family Caregiver’s Month

The National Family Caregivers Association (NFCA) provides education and support to those who are caring for a loved one. Founded in 1993, their motto is “Believe in Yourself, Protect Your Health, Reach Out for Help and Speak Up for Your Rights.”

Fairfax County has regular Free Seminars for Family Caregivers. The seminars take place in October and November and are all geared towards educating the Family Caregiver. Some of the titles include: Planning Quality Time for the Person with Dementia (10/22), End of Life Decisions: What Families Need to Know (10/28) and When Do I Step In (11/5). You can click here to register for any of these free seminars.

The Farr Law Firm is dedicated to helping caregivers by providing outstanding legal services that help preserve assets in order to protect the dignity and integrity of their loved ones.

Free Seminars for Family Caregivers:
http://www.fairfaxcounty.gov/aaa/pdf/cgsemfall2008.pdf

National Family Caregivers Association:
http://www.nfcacares.org/