Category Archives: Retirement Communities

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.

Survey Shows Some Nursing Homes May Bill For Services Not Provided

Written by Evan Farr

A recent Washington Post article concludes that many nursing homes have been “up-coding” billing for care of residents for years, meaning that some nursing homes sometimes bill a resident more than they should be billed by using a special billing category intended to be used only for the five percent of nursing home patients who need highly specialized care and rehabilition. 

The article quotes Marie-Therese Connolly, who headed the Justice Department’s Elder Justice and Nursing Home Initiative from 1999 to 2007, as stating that “[u]pcoding, billing for services not rendered, and billing for worthless services have been significant problems for years, costing taxpayers many millions, if not billions, of dollars.”

In the Washington area, two nursing homes owned by HCR ManorCare put their residents in the most expensive billing category at nearly five times the national average, according to the Washington Post analysis.  The ManorCare nursing home in Silver Spring, MD put 45 percent of its residents into that category, and the ManorCare facility in Wheaton, MD put 43 percent of its residents into that category.  According to the article, a spokesman for ManorCare denied any improper billing or upcoding, stating that residents are coded into billing categories based on their medical and rehabilitative needs.

According to the Post article, this billing program is specifically targeted in President Obama’s health-care legislation passed last week by Congress, changing two rules that experts said have been exploited by nursing homes to inflate bills.  For a review of how the new health-care legislation affects seniors, see my article Health Reform: Changes in Store for the Elderly.

How to Make the Best Nursing Home Placement for Your Loved One

Written by Evan Farr

Most nursing home admissions happen under extremely stressful circumstances. If you are faced with the overwhelming task of finding the best nursing home placement for a loved one, where do you begin? Although this is a job that no one wants, it can be done with forethought and confidence that the best decision was made for everyone involved.  It’s easier, and better for your loved one, if the first placement is well thought out. Although a nursing home resident can be moved from one facility to another, this type of disruption can be very disturbing and is rarely in everyone’s best interest.

The federal Center for Medicare & Medicaid Services (CMS) has a part of its Web site – Nursing Home Compare — comparing nursing homes, which identifies facilities that have a history of poor performance. The Nursing Home Compare site labels nursing homes it calls Special Focus Facilities — those that have repeatedly violated state and federal health and safety rules and that rank in the worst 5 to 10 percent of all inspected facilities in a given state.  Using Nursing Home Compare, you can obtain detailed inspection information about each nursing facility that interests you, comparing various government-rated “quality measures” such as:

• Percent of Residents Who Have Moderate to Severe Pain;
• Percent of High-Risk Residents Who Have Pressure Sores;
• Percent of Residents Who Were Physically Restrained; and
• Percent of Residents Who Spend Most of Their Time in Bed or in a Chair.

The Nursing Home Compare Web site also rates the care and services that each facility provides to its residents, and allows you to view how each facility stacks up in staffing hours for each type of health care worker against the state and national averages.

U.S. News and World Report also recently started providing rankings of America’s nursing homes. The U.S. News rankings rely on Nursing Home Compare but provide some advanced search engine capability.   According to U.S. News,  their new feature –America’s Best Nursing Homes – addresses these and other issues.  Nursing homes are presented in tiers within each star category, based on their total stars in all three of the major areas. The topmost tier, for example, consists only of five-star homes that got 15 stars. The next tier down is five-star homes with 14 total stars, and so on. Within each tier, nursing homes are listed alphabetically. If you’re looking for a nursing home by location, and turn up too many, search terms can be combined in order to narrow the results.  For example, perhaps you want to search just for nursing homes that have a religious affiliation, or that accept Medicaid residents. Or you can launch a multipronged search, perhaps searching for non-profit four-star nursing homes that accept Medicaid and are located within 25 miles of a particular city. 

Placing your loved one in a nursing home that accepts Medicaid is vitally important if you plan to use the services of an Elder Law firm  (such as the Farr Law Firm) to help you with Medicaid Asset Protection.

Another free Web site that lets you compare nursing homes is MemberoftheFamily.net, which features easy-to-read, color-coded assessments of nursing homes nationwide.

Despite the ratings, in my experience nothing can substitute for visiting a nursing home in person. Virtually every nursing home will
have some deficiencies; after all, working with extremely disabled and impaired persons is very difficult. In my book, The Virginia Nursing Home Survival Guide (available as a free e-book on our Web site or in print edition at Amazon.com), I provide a Nursing Home Evaluation Tool to help consumers compare nursing homes during personal visits.

To find the best possible nursing home for your family’s situation, the first step is to determine what is most important for your family in looking for a facility. The resident’s needs and desires must be included in this evaluation. Consider variables such as location of the facility, whether a special care unit (such as for dementia) is available, and what types of payment sources are accepted. 

The second step is to identify the facilities in your area which meet the criteria you have established.

Step three is to tour those facilities you have identified in step two.  You don’t need to schedule your visits in advance. If you show up during regular business hours, you should be able to meet with an administrative staff member, who should be able to answer all your questions.  You will also want to tour a second time, in the evening or on the weekend, to see if there is a drastic difference in the atmosphere of the facility or the care being provided. It is important to tour at least two facilities so you can see the difference in the physical facility and the staff. 

While you are touring the facility, pay attention to your gut feelings.  Ask yourself:

• Do I feel welcome?
• How long did I have to wait to meet with someone?
• Did the admissions director ask about my family member’s wants and needs?
• Is the facility clean?
• Are there any strong odors?
• Is the staff friendly?
• Do they seem to genuinely care for the residents?
• Do the staff seem to get along with each other?

Listen and observe. You can learn a lot just by watching and paying attention. And ask questions. You want to be sure that the facility is giving proactive care, not just reacting to crisis.  Here are a few examples of the types of questions the staff should be able to answer:

• How do you ensure that call lights are answered promptly, regardless of your staffing?
• If my father is not able to move or turn himself, how do you ensure that he is turned and does not develop bedsores?
• How do you make sure that someone is assisted with the activities of daily living like dressing, toileting and transferring?
• Can residents bring in their own supplies?
• Can residents use any pharmacy they wish?
• How many direct care staff members do you have on each shift? Does this number exceed the minimal number that state regulations require, or do you just meet the minimum standard?
• What sources of payment do you accept?
• How long has the medical director been with your facility?
• What is your policy on family care planning conferences? Will you adjust your schedule to make sure that I can attend the meeting?

While touring each facility, use my Nursing Home Evaluation Tool to help you keep track of which facility you like best.  

Don’t Forget Expert Legal Help.

In addition to finding the facility you like best, don’t forget that you need expert legal assistance as part of the nursing home planning process. Without proper planning and legal advice from an experienced Elder Law firm such as the Farr Law Firm, many families needlessly squander their life savings on long-term care, and unnecessarily jeopardize their own care and well-being, as well as the security of their family.   The way to get the best care in any nursing home is to make sure that you choose a nursing home that accepts Medicaid and work with a Certified Elder Law attorney who specializes in Medicaid Asset Protection.  

What is the goal of this type of planning? The goals differ from person to person and family to family. Generally, for a married couple the most important goal is to ensure that the spouse remaining at home is able to live the remaining years of his or her life in utmost dignity, without having to suffer a drastic reduction in his or her standard of living. For a single or widowed client, the most important goal is typically to be able to enjoy the highest quality of life possible in the event of an extended nursing home stay. When there is an adult child or grandchild who is disabled, the primary goal is typically to protect assets to be used for the benefit of that disabled family member who is often also receiving Medicaid.  Money that is protected through proper planning can be used to provide a nursing home resident with an enhanced level of care and a better quality of life while in a nursing home and receiving Medicaid benefits.

For instance, protected assets can be used to hire a private nurse or a private health aide — someone to provide one-on-one care to the
resident — to help the resident get dressed, to help the resident get to the bathroom, to help the resident at mealtime, and to act as the
resident’s eyes, ears and advocate.  Money that is sheltered through proper planning can also be used to purchase things for the nursing home resident or disabled child that are not covered by Medicaid — such as special medical devices, upgraded wheel chairs, transportation services, trips to the beauty salon, etc.

Lastly, some parents do have a strong desire to leave a financial legacy for their children, particularly if there is a disabled child or
someone who needs special financial help.  

The Farr Law Firm specializes in Medicaid Asset Protection.  When your family member needs nursing home care, please remember that we are here to help you.

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.

Important Elder Law and Estate Planning Numbers for 2010

Written by Evan Farr

Under current law, there will be no cost-of-living adjustment (COLA) in Social Security in 2010 — the first time that has happened since automatic cost-of-living adjustments began in 1975. Several bills before Congress would grant a special increase in Social Security payments for 2010.

In addition, when no Social Security COLA is provided, Medicare Part B premiums — which are deducted from Social Security checks — are frozen for most beneficiaries so that the Social Security checks do not drop (click here for more information).

Below are figures for 2010 that are frequently used in the elder law practice, including the new Medicaid spousal impoverishment figures, the long-term care insurance deductibility limits, and Medicare premiums and co-pays, and Social Security Figures:  

Medicaid Figures for 2010 

Divestment Penalty Divisor $ 6,654.00 – Northern Virginia (Arlington, Fairfax, Loudoun and Prince William Counties and the Cities of Alexandria, Fairfax, Falls Church, Manassas and Manassas Park.)
$ 4,954.00 – All Other
Individual Resource Allowance $ 2,000.00
Monthly Personal Needs Allowance $ 40.00
Minimum Community Spouse Resource Allowance $ 21,912.00
Maximum Community Spouse Resource Allowance $ 109,560.00
Minimum Monthly Maintenance Needs Allowance $ 1,821.25
Maximum Monthly Maintenance Needs Allowance $ 2,739.00
Shelter Standard $ 546.38
Standard Utility Allowance $ 141

Estate Tax Exclusion / Exemption Equivalent Amount: 

Unlimited Exemption (Estate Tax Temporarily Repealed for 2010).  Exemption currently set to revert to $1 million in 2011.

 Annual Gift Tax Exclusion: $13,000  

Attained age before the close of the taxable year Maximum deduction
40 or less $330
More than 40 but not more than 50 $620
More than 50 but not more than 60 $1,230
More than 60 but not more than 70 $3,290
More than 70 $4,110
Beneficiaries who file an individual tax return with income: Beneficiaries who file a joint tax return with income: Income-related monthly adjustment amount Total monthly premium amount
Less than  or equal to $85,000 Less than or equal to $170,000 $0.00 $110.50
Greater than $85,000 and less than or equal to $107,000 Greater than $170,000 and less than or equal to $214,000 $44.20 $154.70
Greater than $107,000 and less than or equal to $160,000 Greater than $214,000 and less than or equal to $320,000 $110.50 $221.00
Greater than $160,000 and less than or equal to $214,000 Greater than $320,000 and less than or equal to $428,000 $176.80 $287.30
Greater than $214,000 Greater than $428,000 $243.10 $353.60
 

Social Security Figures for 2010

         (Click here for SSA Press Release)
         (Click here for SSA Fact Sheet)
 

  • Cost of Living Increase: 0 percent 
  • Maximum Taxable Earnings: $106,800   

SSI Federal Payment Standard:  

  • Individual: $674/mo.
  • Couple: $1,011/mo.

Did you see last Sunday’s Washington Post article?

Written by Evan Farr

Did you catch last Sunday’s Washington Post article by David Hilzenrath, about the October bankruptcy filing of Erickson Retirement Communities? My phone has been ringing all week with people concerned about this news, because Erickson is a major developer and manager of Continuing Care Retirement Communities (CCRCs) for senior citizens.

In the Washington area, Erickson communities include: Greenspring in Springfield, Virginia; Ashby Ponds in Ashburn, Virginia; and Riderwood in Silver Spring, Maryland. I spoke with the author prior to the article and gave him some of the information that he referenced in the article. As he explained, the recession and the real estate crisis have raised concerns for people who paid significant money — often hundreds of thousands of dollars — to enter CCRCs such as these.

It’s important to understand that the deposits that senior pay are simply for the privilege of moving in; at most CCRCs, the deposits generally do not confer any ownership in the real estate, and the deposits are in addition to the regular monthly fees for the facility, which increase as the level of care increases — from independent living up to assisted living and eventually nursing home care. Here’s a link for the article in case you missed it: http://tinyurl.com/EricksonBankruptcy.

In a companion article (http://tinyurl.com/ScrutinizeContracts), headlined Scrutinize any contract to avoid nasty surprises at continuing care community, the author points out that the entrance agreements for these facilities should always be reviewed by an attorney. “If you are considering moving to a continuing care retirement community,” the author says, “you would do well to consult a lawyer and read the fine print of any contract to determine whether the potential benefits outweigh the risks.” I have recommended this to my clients for years, and encourage everyone in the Northern Virginia area moving into a CCRC to have me review the contract.  But please note — it is very important to have me review the contract prior to signing the contract. For many of the people calling me this week who read the article and are concerned, there’s nothing I can do because they already signed their contract. These folks I referred to a real estate litigation attorney to discuss the possible results of what might happen if they fail to go through with their contract. Those results could include being sued for breach of contract by the owner of the facility, and possibly being forced to pay significant monetary damages.

One risk in connection with the entrance contract is that most CCRC contracts require you to agree not to give away any assets that would bring your net worth below a minimum requirement (in order to help assure management that you have the ability to pay their ongoing charges). The author quotes me in article, saying “Evan H. Farr, a Fairfax lawyer who specializes in issues facing the elderly, recommends putting any extra assets in an asset protection trust before you move in.” 

I’m very glad that the author included this quote in his article, because far too many people move into these types of facilities without giving asset protection a second thought. If you are considering moving into a CCRC, it behooves you to not just have me review the contract, but to also have me create the proper type of asset protection trust for you to put your extra assets in before you move in to the community.  What is the proper type of asset protection trust?  It’s my proprietary Living Trust PlusTM Asset Protection Trust — the trust that protects your assets from the expenses of probate PLUS lawsuits PLUS the catastrophic expenses of nursing home care. 

As the creator of the Living Trust PlusTM and the leading expert on this type of trust in the country, I’ve taught thousands of attorney across the country about the benefits of these trusts, and I’m actually teaching another course on this subject to attorneys tomorrow at an annual conference of the National Academy of Elder Law Attorneys.  If you want to find out more about the  Living Trust PlusTM, please come to a free class I’m teaching for members of the public on Saturday, November 14, 2009 at 10:00:00 AM, at the Tysons Corner Mariott, 1960-A Chain Bridge Road, McLean, VA 22012. 

By coming to this FREE class, you’ll learn what thousands of attorneys and clients already know . . .

- That a Will puts your assets through probate, and is a very poor estate planning document.
- That a regular living trust protects your assets from probate, but offers you no asset protection.
- That my Living Trust PlusTM Asset Protection Trust protects your assets from the expenses of probate PLUS lawsuits PLUS the catastrophic expenses of nursing home care.

To register, just go to http://evanfarr.com/seminars.html.

I hope to see you soon!

CCRC Resident Fights Move to Increased Level of Care

Written by Evan Farr

An 88-year-old California widow is challenging an attempt by her continuing care retirement community (CCRC) to move her from her private apartment to an assisted living unit. If she is successful, the outcome could set a legal precedent for more than 5 million Americans living in retirement communities, CCRCs, and assisted living facilities.

In 1991, Sally Herriot and her husband, John, paid a $180,000 non-refundable entrance fee to Channing House, a Palo Alto that offers residents a continuum of care, from independent living to skilled nursing units. As is typical of CCRC contracts, the Herriot’s admission agreement gave Channing House’s administrators the right to determine the appropriate level of care for the couple and the authority to move either of them into an assisted living unit or a skilled nursing facility if and when it determined they needed more care.

Mr. Herriot died in 2005. Last year, Channing House notified Mrs. Herriot — who uses a walker, needs help getting dressed and has problems with her eyes — of their intention to move her from her spacious ninth-floor apartment with a covered balcony to a much smaller, hospital-like assisted-living unit where she would share a room but also be served by a trained nursing staff. Mrs. Herriot resisted, saying that with the help of the round-the-clock private aides she hires herself, she has everything she needs and does not require a higher level of care.

Mrs. Herriot’s attorneys, Michael Allen and Susan Silverstein (who is with AARP), filed a lawsuit alleging that by forcing Mrs. Herriot to move, Channing House is violating anti-discrimination housing and disability laws. Channing House’s executive director, Carl Braginsky, counters that decisions to move residents from one level of care to another are made only after careful consideration and consultation with medical staff. Paul Gordon, one of Channing House’s attorneys, rejected as “insulting and misleading” Mrs. Herriot’s attorneys’ assertions that such decisions are motivated by the opportunity for financial gain, such as from the sale of Mrs. Herriot’s now greatly-appreciated apartment.

The result of the case could have lasting repercussions on how America’s burgeoning population of seniors is allowed to age. “If Sally Herriot can be forced to move, then it undermines the whole concept of aging in place,” her attorney Michael Allen told the San Francisco Chronicle.

Lawyers on both sides are scheduled to begin mediation in April, and considering that CCRCs are in the business of marketing peace of mind, Channing House may have additional incentives to avoid a trial.