Wednesday, September 13, 2017

Junk It

How to Cut Junk Mail and Phone Calls Down to Size
Older Adults are juicy targets for marketers. Most marketing offers you get by mail are legitimate and are just “junk” to you. It seems that more and more of the unsolicited phone calls seniors receive are outright fraudulent. 
You can get rid of a lot of the junk mail and phone calls you receive by acting as described in this article. But fraudulent solicitations, especially phone calls and e-mails, will probably keep coming Don’t be polite when solicited by phone. Just say no and hang up.
Here is how to reduce the volume of unsolicited offers you receive.
Credit Card Offers
"You're Pre-approved!" Lucky you.
Do you get unsolicited credit card offers? Are you sick of having to put those offers through a shredder due to fear that an identify thief could take out credit in your name? What can you do to stop getting them?  
Actually, you can put a stop to them. The major credit reporting companies sell your information to the credit card issuers who then send you their pre-screened offers. But the reporting companies also allow you to remove yourself from receiving such offers.
To opt out for a period of five years you can call toll-free 1-888-5-OPT-OUT (1-888-567-8688) or visit www.optoutprescreen.com  The phone number and website are operated by the major consumer credit  reporting companies.
You will need to provide personal information, including your home telephone number, name, Social Security number, and date of birth. But the information you provide is confidential and will be used only to process your request to opt out.
You also have the ability to opt our permanently but it takes more work. To remove yourself permanently from pre-screened credit card offers, visit the website www.optoutprescreen.com and follow the instructions.
Removing your name from pre-screened offers will not have any effect on your credit score or your ability to apply for or obtain credit in the future.
Do Not Call Lists Limit Unwanted Tele-Marketing Calls
Both the federal government and the Commonwealth of Pennsylvania maintain
"do-not-call” lists that allow consumers to limit unwanted telemarketing sales calls. Note that these do-not-call registries prohibit sales calls, But you still may receive political calls, charitable calls, debt collection calls, information calls and surveys. 
Registrations are free and permanent with no need to renew.   
The following information is provided by the Pennsylvania Office of Consumer Advocate
1. National Do Not Call Registry
Most telemarketers cannot call your telephone number if it is in the National Do Not Call Registry. You can register your home and mobile phone numbers for free. You can register for the federal no call registry online at www.donotcall.gov or by calling toll-free 1-888-382-1222.
2. Pennsylvania Do Not Call List
You can register for the Pennsylvania Do Not Call List by calling 1-888-777-3406 or visiting https://www.attorneygeneral.gov/Consumers/Do_Not_Call_List/ to fill out an enrollment form. The PA Office of Attorney General has contracted with a nonprofit organization that is responsible for maintaining a list of consumers who want to avoid telemarketing calls. The list administrator is responsible for updating the list and providing that list to telemarketers on a quarterly basis. Every telemarketer that calls consumers in Pennsylvania is required to purchase the list from the list administrator. The telemarketer must then remove every name on the "Do Not Call" list from their calling lists within 30 days. A violation of the law carries a civil penalty of up to $1,000, or $3,000 if the person contacted is age 60 or older.
Since the Pennsylvania do-not-call registry law has separate procedures and includes a separate civil penalty, it may make sense for older adults to register on both the federal and Pennsylvania lists. Both are free.
Catalogs and Emails
Older Adults can get several thick catalogs in a day’s mail. These can be heavy and quickly fill up the trash. Maybe you enjoy looking through catalogs. But if you want to get fewer of them you can.
The Direct Marketing Association (DMA) allows consumers to limit the number of catalogs they receive. You can include email solicitations and utilize a telephone preference service if you reside in Pennsylvania or Wyoming. The DMA service is not free, but it only costs $2. Visit the website here for further information.
In general, I never click on any kind of email solicitation. Just clicking a link can expose your computer and you to serious risks. I agree with the advice given on the PACE University website as follows:
Protect yourself
i.               Ignore/delete unsolicited emails and do not click on any attachments, links, and forms in them, especially when sent by unknown senders.  If you know the sender, but have any doubt, verify separately with them whether they sent the email in question and whether it is safe to click the link, attachment, or form.  For emails that ask you to click a link to go to the “company’s Website” to log in and/or confirm information, open up a separate browser window instead and type the legitimate Website address yourself.  Check on the Website for any announcements about phishing attacks.  In some cases, you may need to call the customer service number or a company directly to verify the validity of the suspicious email. . . . 

Do not provide your personal information via email.  Reputable companies, including Pace University, will never ask for your personal information via email.  Lastly, don’t visit untrustworthy Websites or download unevaluated freeware or shareware.

Friday, September 8, 2017

How to Protect your Money from Nursing Home Costs



The following article was written by Elizabeth White, a Certified Elder Law Attorney* with the Pennsylvania law firm Marshall, Parker and Weber.]
We all have to face an inevitable fact as we age - We are likely to need long-term care services before we die.
“Long- term care” means the type of care you need if you have a prolonged physical illness, disability or severe cognitive impairment (such as Alzheimer’s disease) that keeps you from living independently. As a result, you need assistance carrying out basic self-care tasks, including feeding, bathing, dressing, personal care, and transferring.
Nearly 70 percent of seniors will receive such help sometime during their old age—usually at home, but often in a nursing home. Long-term care will last for an average of three years. One in five of us will need long term care assistance for five years or more.
The costs can be overwhelming; the burdens on our loved ones enormous.
An elder law attorney can help ease those costs and burdens. This article will discuss three techniques that elder law attorneys use to help families protect themselves against the financial cost of long-term care once the need for that care has arisen. These strategies are just part of the planning arsenal that is available. They can be used in a time of crisis. But, of course, it is best to plan early, rather than wait for a crisis to happen.
The planning ideas discussed below focus on qualifying for the government’s Medicaid program to help protect the financial security of an individual (known as “the community spouse”) who is married to a nursing home resident. But these techniques can be adapted for unmarried individuals and for those persons, married and unmarried, who are receiving care at home.
WHO PAYS FOR LONG TERM CARE?
The average cost of nursing home care in Pennsylvania is now over $105,000.00 a year (in 2017). Not many Pennsylvanians can afford to pay that kind of cost for long. Privately paying for your care involves spending certain assets, such as savings and brokerage accounts, to pay the nursing home or in-home caregiver each month. At an average of over $105,000.00 a year for a nursing home in Pennsylvania, the assets that you have set aside throughout your life are quickly depleted.
When a married couple is facing a spouse in a nursing home, to protect the financial security of the “community spouse” (i.e. the spouse not requiring long-term care,), at least some of that cost may be shifted onto a third party as soon as possible. Potential third-party payers include Medicare, private insurance, and Medicaid.
Most seniors have Medicare financed coverage as their primary payer of health care costs. But Medicare does not pay for long term stays in a nursing facility. At a maximum, and only after meeting certain qualifications, Medicare may pay up to 100 days in a nursing home.
Another possible payment source is insurance. While standard health insurance doesn’t cover nursing home costs, healthy individuals can buy special long-term care insurance that does. But few seniors have this kind of coverage. It’s expensive and underwriting standards can be difficult to meet. And premiums have historically continued to increase. As a result, few seniors are covered by long term care insurance.
However, there are now many long-term care insurance hybrid products available, including life insurance with a long-term care rider, or an annuity product, that may be more suitable for those with concerns about future long-term care. Unlike a traditional long-term care insurance policy where if you do not use the policy you lose the money you paid into it all those years, with hybrid products you can ensure a benefit will pay if you do not need to draw on the policy during your lifetime.
The final payment option is the Medicaid program, America’s health care safety net, and the most significant potential alternative source of long-term care financial assistance for most people.   But Medicaid has complicated financial qualification rules that can prevent a long-term care recipient from qualifying for the program. An experienced elder law attorney will be able to help families find their way through the qualification maze and qualify for Medicaid sooner rather than later.
Here are three techniques that elder law attorneys utilize in the right circumstances to help a long-term care recipient qualify for Medicaid benefits.
USING ASSETS TO PAY OFF DEBTS AND EXPENSES
By using at risk assets to pay bills prior to applying for Medicaid (but after the institutionalization date to a skilled nursing facility, also known as the “snapshot date”) the community spouse can reduce the demands on the assets he or she needs to spend on care under the Medicaid spousal impoverishment rules. For example, a couple may elect to pay off existing debts and/or to prepay real estate taxes, insurance, or other large bills.
Example: John and Marian Jones have a home and $100,000.00 of savings when John enters a nursing home for a long term stay. Under Medicaid spousal impoverishment rules, Marian is allowed to keep $50,000.00 as her protected allowance and John is permitted to retain $2,400.00. They have $47,600.00 in excess resources that prevent John from being eligible for Medicaid.
After John’s admission to the nursing home, Marian spends the $47,600.00 excess by paying off the mortgage on the couple’s home, some credit card debt, and by making an advance payment of real estate taxes. Because Marian now has only $50,000.00, and John has only $2,400.00 left, John is eligible for Medicaid.
BUYING ASSETS THAT ARE NOT COUNTED BY MEDICAID
Medicaid eligibility rules do not count certain assets such as a home, one vehicle, and personal effects. Therefore, in appropriate cases a community spouse might take money from countable savings to buy a more expensive home; repair or improve an existing home; or buy a new car, new household furnishings, or personal effects. Medicaid rules do not restrict spending countable assets on non-countable ones of equivalent value. Money spent on non-countable assets needed for the community spouse’s use can accelerate Medicaid qualification.
Additionally, irrevocable funeral and burial arrangements can be pre-planned and funded for the institutionalized spouse and/or the community spouse. Medicaid does not count these irrevocable funeral assets, provided that they fall under the limits set forth each year.
Example: In the John and Marian example above, after John’s admission to the nursing home, Marian could spend the $47,600.00 excess on a new furnace for their home,  a new car, and irrevocable funeral and burial expenses. Because of this allowable spending John is now financially eligible for Medicaid.
CONVERTING COUNTABLE ASSETS TO INCOME
Some strategies are designed to convert excess assets into income for use by the community spouse. In order to avoid a Medicaid penalty the community spouse must receive something of equal value in exchange for the converted assets.
A conversion strategy that is frequently used involves annuities. Annuities are contractual arrangements in which an individual pays a lump sum to receive a future stream of income in return. They are offered in a variety of forms by commercial financial entities, and can involve poorly understood consequences and costs to the consumer.
Most annuities are inappropriate vehicles for Medicaid planning. But there are particular annuities that conform to the specific requirements of Medicaid law that can be used to protect all of a couple’s excess resources for the community spouse. Although savings are immediately and substantially reduced, the community spouse’s income is increased by a more modest but recurring amount. The at-home spouse can either spend that income or reinvest it, effectively recouping all of the assets used to purchase the annuity.
In the typical scenario, after the institutionalized spouse enters the facility, the community spouse, acting under the guidance of an elder law attorney, liquidates the couple’s excess resources and uses the funds to purchase an irrevocable, non-assignable, non-transferable annuity that meets all of the requirements of the Deficit Reduction Act of 2005. If done correctly, there is no transfer penalty, and, since the check is payable to the community spouse, the payments received are income to the community spouse and do not impact the Medicaid eligibility determination.
Example: Let’s go back to John and Marian. What if John and Marian do not have expenses to pay, already have a brand new vehicle before the nursing home admission, their house was recently updated, and they paid for their final expenses years ago? There is another choice rather than spending the $47,600.00 on care costs. Annuity planning may be appropriate for John and Marian.
Marian could purchase a Medicaid Compliant annuity that satisfies all of the requirements of the law with the excess $47,600.00. The annuity will pay her equal installments of income each month for a determined period. For example, she could receive payments for 5 years of approximately $793.33 a month. These funds would be saved from the cost of her husband’s care and allow her to maintain her standard of living in the community.
Medicaid does have a 5 year look-back for gifts, meaning gifts made within 5 years of applying for benefits will create a penalty during which time you are not able to receive Medicaid benefits. However, there is no 5 year gift penalty for gifts of assets between spouses.
Additionally, with a single individual, a variation of an annuity plan that includes gifts to other family members can be completed if an individual has enough assets to pay through a penalty for those gifts. This gift annuity planning is highly specialized and should only be completed by a
IMPORTANT NOTES
Don’t try the annuity conversion strategy without expert help from an elder law attorney who knows the rules in the Medicaid applicant’s state of residence inside and out. Our Certified Elder Law Attorneys are very knowledgeable of the annuity rules in Pennsylvania. In fact, Attorney Matt Parker worked on a precedential case in 2005 (James v. Richmond) that dealt with the use of these annuities. It’s easy to make a catastrophic mistake by buying the wrong annuity or an annuity that does not contain required special Medicaid provisions or which was purchased at the wrong time.
Importantly, there is different planning that can be done before a time of crisis to help protect assets from the cost of long-term care. This planning can include irrevocable Medicaid asset protection trusts. It also can include a financial power of attorney that can allow someone else (your “Agent”) to step into your shoes and complete any of the planning discussed in this article on your behalf.
Medicaid qualification rules vary from state to state and change over time. This article is based on Medicaid rules in effect in Pennsylvania as of August 23, 2017. Be sure to consult with a Medicaid experienced lawyer in the state where the Medicaid applicant resides to find out about the rules in that state and to help you get the planning assistance you need.
This article lists just a few of the planning strategies available to you under the Medicaid statute and regulations. Each family situation is different and the best solutions for you will depend on your unique circumstances. Consult with an elder law attorney who is experienced in Medicaid issues.
If the person in need of care resides in Pennsylvania, Marshall, Parker and Weber can help. We have been helping families get through the long term care maze for over 35 years.
*Elizabeth White has been certified as an elder law attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. 

Sunday, September 3, 2017

Legal Planning for Aging Parents

The following tips for children of aging parents are from Tammy Weber, managing attorney of the Pennsylvania law firm of Marshall, Parker and Weberhttp://www.paelderlaw.com/10-tips-children-aging-parents/

Being prepared for a crisis as your parents get older is essential, but the conversations are tough and it’s hard to know where to start. In the end, taking these steps to prepare now will make life easier. 

Tip 1Ask about their financial, legal and insurance providers and professionals. Obtain the names and all contact information of each provider and professional and keep in one location. Share that location with both parents and your siblings. This doesn’t mean that your parents have to share how much money and property they have or the disposition of assets in their will.

Tip 2Be aware of current assets and how they are titled. Make a list of bank accounts, numbers, locations, type of account (checking, savings, money market, certificate of deposit, and annuity) and whether each account has any transfer on death (TOD) designations or beneficiary designations. Are there savings bonds, life insurance policies, retirement accounts (traditional IRA, Roth IRA, SEP IRA, 403(b), 401(k)), corporate accounts or family partnerships?

If your parents own real estate, locate the deeds, and determine if and how they share ownership with co-owners. There are three typical types of ownership:  tenants by the entireties, tenants in common and joint tenants with right of survivorship. Each ownership type determines how that real estate passes upon death or to whom and in what proportions sales proceeds are paid. There are also deeds with retained or granted life estates.

Have titles to all vehicles in one place as well. If there are loans or lines of credit on any asset or credit card debt, assemble that list along with account numbers and/or related paperwork.

Tip 3Find out where they keep their legal papers. Make sure they have key documents: Financial Power of Attorney (legal document naming an agent to handle financial dealings during lifetime), Health Care Directive (legal document appointing a health care decision maker when parent is unable to make decisions about treatment choices or end-of-life decisions), Will (legal document that determines the disposition of assets in the parent’s name alone when he or she passes on) and Trust (legal document set up during lifetime that is either revocable or irrevocable).

Do they have caregiver agreements? Caregiver agreements are necessary to obviate liability issues and clarify arrangements with caregiver children or a third-party or agency.

If they have the key documents, are the documents up to date? As a rule, a review every five (5) years or sooner if there is a significant change in health, wealth or status of the parents or a beneficiary, is appropriate. For example, if one parent has a long-term admission to a nursing facility, it may not be prudent for the will of the spouse at home to still give all assets to the nursing home spouse.

What role, if any, have your parents given you with respect to these legal documents? Are you able or willing to take on that role?

Tip 4Understand your parents’ strategy and options for long-term care. At age 65, more than 40% of individuals will require some type of long-term care during their remaining lifetime. Payment by Medicare is limited. At most, per spell of illness, Medicare and most supplemental insurance will pay for no more than 100 days in a skilled nursing facility.

Even if your parents meet the physical and resource limitations to receive Medicaid paid care in a nursing facility or at home, there can be a period of ineligibility if gifts were made to someone other than a spouse. This penalty is imposed when gifts are greater than $500.00 cumulative in a calendar month. The penalty applies to gifts made during the five (5) years prior to application for Medicaid in a long-term facility or five (5) years prior to assessment date for Medicaid under the Pennsylvania Department of Aging Waiver program.

In many cases, pre-planning by transferring assets from parents to a Family Asset Protection Trust is the safest and most effective planning. On the other hand, gifting or transferring one’s home to a child “for a dollar” is risky. The home or other asset gift is subject to the child’s personal circumstances. Should there be a death, divorce, bankruptcy,  or substance abuse issues, the parents’ hard-earned assets could go to the former in law or a child’s creditor. Typically, most parents want protection.

Tip 5Know your risks. Be careful of what you sign and how you sign it. If your parent needs to be admitted to a long-term care facility or a personal care home, have them personally sign the admission paperwork if at all possible. If you sign as a guarantor or responsible party, there is a real possibility that you have made a third-party contract to pay for your parent’s care. In addition, the body of Pennsylvania’s filial support law makes children financially responsible for their aging parents’ care costs. Nursing homes and other care providers can sue children to recover unpaid care-related bills. This is not the result that parents or children want.


Tammy A. Weber is a Certified Elder Law Attorney* and the Managing Attorney of the law firm of Marshall, Parker & Weber, which has offices in Williamsport, Wilkes-Barre, Jersey Shore and Scranton, Pennsylvania. For more information visit www.paelderlaw.com/10-tips-children-aging-parents/  or call 1-800-401-4552. 

* Certified as an elder law attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. 

Monday, August 21, 2017

Are Witnesses Required on a Will?

[The following article was written by Attorney  Casey Sauerwine of Marshall, Parker and Weber, and is posted with her permission]

Does a Will Need Witnesses to be Valid? Like many estate planning questions the answer is not as simple as yes or no; but more along the lines of “it depends.” While the law varies from state to state, in Pennsylvania a will usually only has to meet two basic requirements: 1) It must be in writing and 2) it must be signed by the testator (the person whose will it is) at the end[i] thereof. See: 20 PA.C.S.A. §2502.  

 These basic requirements do not include witnesses. Normally as long as you meet the writing and signing requirements witnesses are not required when you sign your will. 

However, there are special circumstances where witnesses are required: when the testator cannot sign his name but rather has to make a mark on the will; or, when the testator cannot sign nor mark on his will and another person has to sign for him. When these circumstances arise it is required that the mark or other individual signing for the testator be done in the presence of two witnesses who sign their names. See, 20 PA.C.S.A. §2502 (2) and (3).

Those are the basic requirements. The bigger question is “Should I have witnesses when I sign my will”? The answer to that question is a definite YES. Here’s why. 

Although witnesses are usually not required at the time the will is signed, they are required in some capacity in order for the will to be probated after the testator dies. (Probate is the legal process of authenticating the will and authorizing someone to administer the estate.) The role of the witnesses is essentially to verify that the instrument being offered is indeed the testator’s will.

If there are no witnesses to the signing of the will, people will need to be located who can verify that the will contains the true signature of the deceased. This can cause unnecessary delay and expense and even result in the inability to probate the will.

In the long run it is definitely better to have witnesses sign your will in the beginning rather than having the executor chase down individuals after your passing.

For Pennsylvania residents, the best way to proceed is to follow the procedure for a “self-proving” will.  Self-proving wills simplify the probate process as they allow the Register of Wills to accept a notarized affidavit from the testator and witnesses as proof the will is the testator’s. This notarized affidavit is placed at the end of the testator’s will and signed by the witnesses at the same time as the testator is signing. If the self-proving will procedure is followed, witnesses will not have to come in to the courthouse to verify the will.

In the end, although you do not usually need two witnesses to sign your will, having a self-proving will can be a huge help for your executor and beneficiaries.

Wills are important and complicated documents. Do yourself and your heirs a favor by avoiding the temptation to “do it yourself” or use a cheap online service. (See our earlier article: Don’t Try This at Home: Do-It-Yourself Wills are Dangerous for more on this topic).

Instead, meet with an experienced elder law attorney who can help you avoid the problems and traps that can cost so much lost time, money and distress for your family after you are gone. If you live in Pennsylvania, the lawyers of Marshall, Parker and Weber will be honored to assist you.

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Friday, August 18, 2017

Risks Involved in Giving your Home to your Children

[The following article was written by Attorney Elizabeth White of Marshall, Parker and Weber, and is posted with her permission]

It is common for parents to consider deeding their home to their child or children. The reasons for contemplating a home ownership transfer vary, but typically include the parents thinking that this will allow their estates to avoid probate, inheritance taxes, or to help them qualify for benefits for long-term care. Although it may appear to be a good decision, unfortunately, many times it does not turn out that way.

It is important to understand the risks of transferring your home to your child.

1.)  Your Home Becomes Subject to Your Child’s Life Circumstances

Once you sign a deed transferring title of your property to your child, you are no longer the owner. A loss of control of the property comes with this loss of ownership. If your child has creditors, a lien could be placed on your property by those creditors. If your child is in an accident and does not have sufficient insurance, your home could be subject to a lien or sale.

If your child divorces, the ownership interest of your home may become part of that divorce settlement. If your child passes away before you, the home will be distributed to his or her estate beneficiaries. The beneficiary could be an in-law who you do not get along with and evicts you from the home. While no one wants to think of the worst case scenario, although everything is stable with your child today, we never know what the future may hold. The risk of losing the ability to live in your residence is a large gamble to take.

2.)  Your Transfer is Subject to the Five (5) Year Medicaid Look-Back

Transferring your home to a child is a gift for Medicaid purposes. Medicaid penalizes gifts made within five (5) years of applying for benefits. During a Medicaid penalty, Medicaid will not pay for long-term care services.

Some parents explain that the deed states that they sold the house to their child for “one dollar”, and therefore it is not a gift. However, Medicaid treats any amount over the fair market value of the property as a gift. Unless your house was actually only worth one dollar, the full value of the home is going to be considered a gift for Medicaid purposes for five years from the date of the transfer. This could significantly impact your ability to pay for long-term care and in certain circumstances could create a situation where your children become responsible for your nursing home bill under Pennsylvania’s filial support law.

3.)  Your Child May Have Future Tax Gain Issues

Generally, when you gift property, the person that receives the gift receives a tax basis in the property that is the same as the donor’s. Many times the parents’ basis is the amount for which they purchased the property. For example, if the parents’ basis in a property is $100,000 and it is transferred to their son, the son’s basis in that property is $100,000. If the parents both die years later (assuming the son did not make the property his primary residence) and the son sells the property for $250,000.00, under today’s tax rules the son is responsible for paying capital gains tax on the difference between his basis ($100,000.00) and what he sells it for ($250,000.00). In this case, the son would have to report the $150,000.00 of gain on his personal income tax return.

In contrast, if you retain ownership or certain powers in your real estate during lifetime, your beneficiaries get a stepped-up basis. This means that your child inherits the property at its value as of your date of death. Many times the capital gains due by a child because of a transfer by parents during lifetime outweigh the inheritance tax that would be due if the parents would pass away with the property in their estate or trust.

The encouraging news is that you can protect against these dangers. There are options, such as irrevocable trusts and life estates, which can alleviate the risks. A properly drafted irrevocable asset protection trust can serve to safeguard and secure your home from a majority of the risks associated with a transfer.

Sunday, July 16, 2017

How to Protect Yourself when Signing Nursing Home Admission Agreements

Placing a family member in a nursing home is a difficult and traumatic event. One of the obstacles to be overcome is reviewing and signing the facility’s admission paperwork. This typically involves many pages of complicated provisions and jargon. There is a temptation to just sign wherever directed without even trying to read and understand the terms.
It’s best to try to overcome the urge to get this onerous task over with as quickly as possible. This paperwork is important. And by signing the admissions paperwork you may be agreeing to be personally responsible for the costs of your family member’s care.
Of course it would be ideal to have a lawyer review the paperwork and explain it to you before you sign. But, that may be unrealistic given the demanding and stressful circumstances. You may be pretty much on your own.
The law does provide some protections for caregivers who find themselves confronted with nursing home admissions paperwork. The Nursing Home Reform Act prohibits certain types of conduct by skilled nursing facilities that participate in Medicare and/or Medicaid.
Unfortunately, the reality is that some nursing facilities include illegal provisions in their admission contracts. I recently encountered an otherwise respected nursing facility that was attempting to have a family member sign as a “co-signer guarantor” to personally guarantee the payment of all charges incurred by the resident. The guaranty read in part: “If the resident does not or cannot pay, I will pay the amount owed to [nursing facility] for residency charges, services, equipment, supplies, medication, and other charges.”
It didn’t matter that this type of third party guarantee provision has been prohibited since the Nursing Home Reform Act was implement more than 25 years ago. There it was – in this nursing home contract in 2017. When the family member questioned this provision he was told that signing it was required. It wasn’t until an elder law attorney (me) spoke with the facility’s chief financial officer that the facility backed off with an apology.
The prohibition of third party guarantee agreements is not a hidden or ambiguous part of the law. I’ve reproduced the relevant section of the regulation below.
The bottom line is – take care to review nursing home admission paperwork and know what you are signing. It is a legal agreement that could put you on the hook for tens of thousands of dollars.
Get the paperwork reviewed by your lawyer if you possibly can do so. If not, try to educate yourself as best you can ahead of time. Strike out and initial provisions to which you do not want to agree. Sign the paperwork as the representative of the resident only and try not to take on personal liability. For example, you can sign the line for the signature of the applicant/resident in a way that shows you are signing only in the capacity of being the agent of the resident: “John Resident by Family Member, his agent.” Try to avoid signing as “responsible party” or “guarantor.”
Be aware that if the resident has already been admitted to the facility and moved in, there are only a few reasons that can cause them to be discharged. (I’ve reproduced the regulation stating the 6 reasons for discharge below). A family member’s refusal to sign an agreement to become personally responsible for the cost of care is not one of those reasons.
The Regulations
The federal requirements for skilled nursing facilities can be found at 42 CFR Part 483, Subpart B. Section 483.15 of these regulations lays out the requirements regarding admission policies. I’ve highlighted subsection 3 which prohibits facilities from requesting or requiring a third party guarantee of payment.
(a)Admissions policy.
(1) The facility must establish and implement an admissions policy.
(2) The facility must -
(i) Not request or require residents or potential residents to waive their rights as set forth in this subpart and in applicable state, federal or local licensing or certification laws, including but not limited to their rights to Medicare or Medicaid; and
(ii) Not request or require oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits.
(iii) Not request or require residents or potential residents to waive potential facility liability for losses of personal property
(3) The facility must not request or require a third party guarantee of payment to the facility as a condition of admission or expedited admission, or continued stay in the facility. However, the facility may request and require a resident representative who has legal access to a resident's income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the resident's income or resources. [emphasis added]
(4) In the case of a person eligible for Medicaid, a nursing facility must not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission or continued stay in the facility. However, -
(i) A nursing facility may charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State plan as included in the term “nursing facility services” so long as the facility gives proper notice of the availability and cost of these services to residents and does not condition the resident's admission or continued stay on the request for and receipt of such additional services; and
(ii) A nursing facility may solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the facility for a Medicaid eligible resident.
(5) States or political subdivisions may apply stricter admissions standards under State or local laws than are specified in this section, to prohibit discrimination against individuals entitled to Medicaid.
(6) A nursing facility must disclose and provide to a resident or potential resident prior to time of admission, notice of special characteristics or service limitations of the facility.
(7) A nursing facility that is a composite distinct part as defined in § 483.5 must disclose in its admission agreement its physical configuration, including the various locations that comprise the composite distinct part, and must specify the policies that apply to room changes between its different locations under paragraph (b)(10) of this section.
---------------------------------
The rules for discharging a resident are found at 42 CFR Part 483, Subpart B, Section 483.15(c):
(c)Transfer and discharge -
(1)Facility requirements - (i) The facility must permit each resident to remain in the facility, and nottransfer or discharge the resident from the facility unless -
(A) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;
(B) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;
(C) The safety of individuals in the facility is endangered due to the clinical or behavioral status of the resident;
(D) The health of individuals in the facility would otherwise be endangered;
(E) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies if the resident does not submit the necessary paperwork for third party payment or after the third party, including Medicareor Medicaid, denies the claim and the resident refuses to pay for his or her stay. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or
(F) The facility ceases to operate.
Further Reading
An excellent online resource for learning about the rights of nursing home residents and their families is the website of the National Consumer Voice.

Be aware that in some states, including Pennsylvania, family members can become liable for a parent or child’s unpaid cost of care under what are known as filial support laws. See my article on this subject: Law can require children to pay support for aging parents. It’s a good idea to meet with an experienced elder law attorney as soon as possible if your parent or spouse r needs nursing home care.

Thursday, July 13, 2017

Pennsylvania's New Notary Law

Pennsylvania has adopted a version of the Revised Uniform Law on Notarial Acts. The new law, which takes effect on October 26, 2017, codifies provisions relating to notaries in Title 57 and repeals existing laws relating to notaries.
The new law will be of interest not only to notaries but to lawyers and anyone who employs notaries.
A copy of the law (57 Pa.C.S. §301-331) is available here. An overview of its major changes to prior law is available here.  The National Notary Association has a useful compendium of various PA statutes that are related to the notary process: https://tinyurl.com/y6vuvlfp  
Further information on the regulation of notaries in Pennsylvania is available on the PA Department of State website: www.dos.pa.gov/OtherServices/Notaries
Further Reading:

Sunday, July 9, 2017

How to Avoid an Estate Planning Tragedy



You see me here, you gods, a poor old man,
As full of grief as age; wretched in both.
-King Lear, 3.2

I recently purchased a copy of King Lear. Somehow, I had never read this Shakespeare classic. Now, being semi-retired I have some time to read things like this that I missed.

Wow. This is a serious tragedy. And it arises from a failure of retirement and estate planning.

In case you missed the story (or read it many years ago) here is an overview. As the play begins, an aging and addled King Lear decides to divide his lands among his three daughters. He decides to give the largest share to whoever flatters him the most. Lear’s corrupt daughters, Regan and Goneril, are quite willing to lie to their father with excessive expressions of love they do not feel.

Cordelia, his one honest and loyal daughter, refuses to flatter Lear but says with sincerity that she loves him as a daughter should. Offended, Lear disowns and banishes Cordelia.

Lear turns his estate over to Regan and Gonerli and then their true natures are revealed. They treat their father with disrespect and conspire against him. 

Virtuous daughter Cordelia returns with an army in an attempt to protect her father but she loses the battle against her evil sisters. Eventually Cordelia is executed. Goneril poisons Regan and later kills herself.  Lear himself ends up blind, impoverished, sick and overwhelmed by grief. The strain overcomes Lear who falls dead on top of Cordelia’s body.

King Lear’s story illustrates the hopes and fears of many of us as we grow old.  We want security and respect, good health (and health care) as we age. We want to leave a positive legacy and a family at peace after we are gone. All of these goals eluded King Lear.

How sharper than a serpent's tooth it is
To have a thankless child!
King Lear, 1.4

While the Lear story is extreme, I have seen bits and pieces of his tragedy occur many times over my long career. Children do sometimes treat their aging parents very badly. Sibling rivalries that have been submerged since childhood can reawaken with volcanic force when a parent becomes incapacitated or dies. A plan that leaves things uncertain under the philosophy that “the kids will sort it all out after I’m gone” can be a recipe for serious family discord. Siblings can battle for years over an inheritance and end up spending more on lawyers and litigation costs than the inheritance is worth.

While a good estate planning lawyer is not going to be able to prevent you from having a thankless child, expert advice and advance planning can minimize the problems that will result. Advance planning for the reality that we are aging and will eventually die can help avoid problems for both you and your family. Heed the lessons of King Lear:

  • Don’t wait until you are addled (like Lear) to plan your estate
  • Plan and prepare in advance for the possibility that you may lose mental capacity in the future
  • Set up a plan to protect your future  financial security
  • Have a well thought out Will and estate plan
  • Get expert professional help from an experience elder law and estate planning attorney
  • Read Shakespeare (or attend a theater production).