Virginia Beach Elder Law Attorney Blog - South East Virginia

A “New Wave” of Lawsuits May Force Children to Pay for Elderly Parents’ Nursing Costs

Posted on April 16, 2012 by Angela

Many of our clients and readers are caregivers of elderly parents; they have chosen to take responsibility for their parents—whether it be physical responsibility, financial, or other. But what if instead of making that choice, you had responsibility for your aging parents thrust upon you? This is exactly the issue addressed in this recent article from Elder Law Answers.

“John Pittas’ mother entered a nursing home for rehabilitation following a car crash. She later left the nursing home and moved to Greece, and a large portion of her bill at the nursing home went unpaid. Mr. Pittas’ mother applied to Medicaid to cover her care, but that application is still pending. Meanwhile, the nursing home sued Mr. Pittas for nearly $93,000 under the state’s filial responsibility law, which requires a child to provide support for an indigent parent. The trial court ruled in favor of the nursing home.”

The article points out that many states still have filial responsibility laws on the books, but that those laws are rarely enforced. This ruling by the Pennsylvania Supreme Court does not bode well for Baby-Boomers, many of whom are finding themselves caught between caring for elderly parents and for grown children who have not yet left the nest.

Perhaps one of the most disturbing things about this case is that the nursing home was given so much leeway. The Pennsylvania Supreme Court found that “the law does not require [the nursing home] to consider other sources of income or to wait until Mrs. Pittas’s Medicaid claim is resolved.” This would seem to condone (if not encourage) a litigious mind-set among nursing homes. As if this weren’t bad enough, the court “also said that the nursing home had every right to choose which family members to pursue for the money owed.” If you are one of many siblings you could find yourself involved in a lawsuit merely because you live the closest, are the wealthiest, or called mom more often than your brothers or sisters.

The best way to ensure that your family doesn’t find itself embroiled in a similar lawsuit is to ensure that you (or your elderly parents) have a plan in place to pay for long-term care. Contact our office to explore your options.

Posted in Elder Law | Leave a comment

Are You A Caregiver?

Posted on March 29, 2012 by Angela

Many children of adult parents don’t even realize that they are caregivers. Using our checklist below, answer each question to determine if you are a caregiver:

Do you do any of the following on a daily, weekly or monthly basis?

Take your parent to doctor’s appointments
Help your parent with household chores
Call to check in on your parent
Monitor whether your parent is taking their medications
Prepare meals for your parent or monitor the meals they are preparing
Run errands for your parent
Help your parent bathe, dress, or use the bathroom
Monitor your parent’s finances

If you’ve answered yes to two or more of the above questions, then you are a caregiver. As your parents age, caregiving responsibilities will only increase. As children you expect your parents to always look after your needs and many times it just doesn’t seem right to watch as your parents descend into old age and illness. Many people prefer to live in denial rather than face the unavoidable fact that their parents will someday die. No matter how old you become, your parent is still your parent and the parent/child dynamic will always dominate your thought processes.

It can be very hard to accept when the time comes that your parents are no longer independent. As hard as it is for you to face, your aging parents feel as much or more despair, depression, and anger over their own declining abilities and loss of independence as you do. Ultimately, your parents can feel completely vulnerable and at the mercy of everyone around them. Many times they are worried about what will happen to them and where will they live. I frequently hear from seniors that their #1 concern is being left alone in a nursing home. The #2 concern is being a burden on their children.

So, when you add it all up, the result is two and sometimes three generations of unresolved hurt, fear, and often angry and resentful feelings in one household. And while stress is to be expected, the situation doesn’t have to become overwhelming. There are many things that you can do now to prevent a crisis from occurring once your parents are unable to care for themselves:

Decide who will be the principal caregiver for your parents
Determine what responsibilities can be shared with other family members
Have an open and honest communication with your parents about the situation
Share feelings and information with other family members and caregivers
Make sure your parent’s financial and legal documents are up to date
Make sure your parent has regular checkups at the doctor and has a geriatric assessment so a health crisis can be avoided

By addressing these issues before your parents are unable to help you make decisions, a lot of the stress that goes along with being a caregiver as and adult child can be prevented. When you have an honest dialogue with your parents and other family members about these sensitive issues from the start, the resentment and hurt that often occurs can be eliminated and your parents will receive better care as they age.

Posted in Care Management | Leave a comment

The High Emotional—And Financial—Cost of Alzheimer’s Disease

Posted on March 23, 2012 by Angela

Alzheimer’s is a disease that affects everybody it touches—husbands, wives, children and grandchildren—they all bear witness to their loved one’s slow demise.

Sadly, emotional stress is not the only stress that accompanies Alzheimer’s disease; those loved ones serving as caretakers may carry a huge amount of financial stress as well. The cost of caring for an Alzheimer’s patient can run anywhere from $64 a day to $77,380 a year, and because Alzheimer’s disease can be such a long-lasting disease (a person can suffer from Alzheimer’s for up to 20 years) the costs of care can end up being astronomical. It’s obvious that people can’t do it alone.

Long-term care insurance can be very helpful in paying for the costs of care necessary for a loved one suffering from Alzheimer’s… if your loved one has thought ahead and purchased the policy before they or their spouse began suffering from symptoms of Alzheimer’s. Some people may not have thought ahead and hope that government programs will be able to help with the high cost of care. Medicaid can be helpful … if you fall in the right category and know how to navigate the complex system. (Medicare doesn’t cover the cost of long-term care.)

Unfortunately, learning how to navigate the system is not something you can do in an hour or two. Because your experience will depend on a number of unique factors we can’t give you an easy set of instructions to follow. The best advice we can give is to say that right now, the best way to navigate the Medicaid/Medi-Cal system is to find someone who knows the system to assist you. Most estate planning and elder law attorneys help their clients with these issues on a regular basis. If you want to ensure that you and your loved ones will be cared for no matter what the future may bring, don’t be afraid to ask your attorney for help.

Posted in Elder Law, Medicaid | Leave a comment

How To Pay For Extended Care

Posted on March 22, 2012 by Angela

Paying out-of-pocket

While this option is not feasible for many seniors, some people may be able to pay for long term care using their own assets. This is a good option for wealthy seniors who have plenty of assets. Paying for long-term care from your own resources can save the time and stress associated with applying for Medicaid, veteran’s benefits, or other sources of payment.

Medicaid

Medicaid is for less wealthy people who have already exhausted their financial resources. However, because it provides at least some of the payment for long-term care for about two-thirds of nursing home residents, it should not be looked upon as “welfare” or as something that is available only to impoverished seniors. Medicaid can be used for community-based care – that is, long-term care that takes place in a community setting like an assisted living facility or adult day care. It can cover the cost of doctor’s visits, hospital care, outpatient care, home health care, medications, and nursing home care. However, Medicaid is limited, and it does not pay for the cost of home care or adult day care in every state. Furthermore, not all nursing homes accept Medicaid as a payment option, and it is important to make sure than any nursing homes you consider accept Medicaid if you will be relying on Medicaid to pay for long-term care.

Veteran’s Benefits

There are two major benefits available to veterans through the Department of Veteran’s Affairs. The first benefit is the death pension, which is available to surviving spouses or unmarried children of deceased veterans who were not discharged dishonorably and who served in the military for 90 days or more, at least one day of which was during wartime.

Another financial benefit available to veterans and their spouses is aid and attendance. In order to qualify for this benefit, you must be in need of the aid and attendance of someone else – for example, you must require nursing home care or live in an assisted living facility because you are mentally or physically incapacitated.

Long-term care insurance

Long-term care insurance can help you pay for part of the cost of long-term care. It can provide money that will pay for an aide to come into your home and help you with daily living, or it can help to pay for the cost of adult day care, an assisted living facility, or a nursing home. It is often available through a variety of sources, including employers, private insurance companies, fraternal societies, and continuing-care retirement communities. However, if your need for long-term care is right around the corner, the premiums that you will have to pay for long-term care insurance will often be too high, and some seniors in poor health might not qualify at all. Therefore, it is important to consider this option early-on, before you are in poor health.

Reverse mortgage

Reverse mortgages are an option for homeowners over the age of 62. When you take out a reverse mortgage, your home equity is turned into liquid cash. This money can be used for anything, from remodeling your home to make it handicapped accessible to paying for long-term care. While many people believe that they must give up their home in order to obtain a reverse mortgage, the truth is that there is no requirement that you move or even make regular loan payments as long as you remain in the home. However, reverse mortgages aren’t for everyone. If you are planning on moving any time soon, it is not financially wise to get a reverse mortgage due to the high up-front costs associated with obtaining a reverse mortgage. Also, if you are not facing a financial emergency or if you have other financial resources available to you, it is best to explore those options first. Obtaining a reverse mortgage depletes your home equity, which you may need later if another financial crisis arises. It is best to consider less costly alternatives, such as a home equity loan or a home equity line of credit, before resorting to a reverse mortgage. Finally, if your main goal is to preserve your resources for your children to inherit, a reverse mortgage is not the best plan. Once your house is sold, a high percentage of the proceeds will go to the lender of the reverse mortgage rather than to your children.

Posted in Long-Term Care | Leave a comment

Will You Need a Probate Attorney?

Posted on March 21, 2012 by Angela

The subject of probate is one that nobody wants to learn about too early; in fact, most people would probably avoid it altogether if they could. Unfortunately, the probate process can be very confusing and frightening when you are forced to become intimately acquainted with it—especially if you have no prior experience with or knowledge of it.

For a beneficiary, probate can be lengthy, expensive and frustrating; but if you have been named as executor, probate can suddenly become an overwhelming maze of deadlines, notifications and potential liabilities. This is why many executors choose to hire a probate lawyer to help them through the process.

If you are the executor of a small estate with a straightforward will and one or two beneficiaries who are not contentious then you can probably do without an attorney. But you will want to think about hiring an attorney if you are serving as an executor under any of the following circumstances:

* There are a number of beneficiaries who are not on friendly terms, or a number of beneficiaries receiving varying sizes of inheritance.

* The decedent had large estate with many different assets, especially if the assets are not commonly held.

* The decedent was a resident in a different state than your own home state.
A large number of creditors are making claims on the estate.

* There is a disagreement about the will, or if more than one will was found.

* The will is challenged or contested.

These are only a few of the reasons why you might want to consider hiring an attorney to help you through the probate process. If you aren’t sure whether you’ll need an attorney, don’t hesitate to call our office for a consultation. We can help walk you through the process and consider any obstacles that might arise. A little bit of foresight, and knowing you have an experienced professional on your side, can make all the difference in the probate process.

Posted in Estate and Trust Administration | Leave a comment

Have You Seen This Person?

Posted on March 19, 2012 by Angela

If you are a Caucasian woman, aged 35 or older, possibly married, very likely working full or part-time—then there is a good chance that you are also (or will soon be) serving as a caregiver for an aging parent or relative. At least this is what a recent report released by the National Alliance for Caregiving, AARP, and MetLife indicates.

The entire report, entitled “Caregiving in the U.S., A Focused Look at Those Caring for Someone Aged 50 or Older” is 73 pages long, but you needn’t read the entire thing to get an insider’s peek at the state of caregiving today. And the report isn’t limited to caring for an aging relative; it includes statistics on those caring for special needs children, as well as family members of any age.

Some of the more interesting statistics listed in the report are:

* 40% of Caregivers are aged 50-64.

* 63% of those receiving care are over the age of 75.

* 67% of Caregivers are women.

* 76% of Caregivers are Caucasian.

* 89% are caring for a relative (36% of the time it is the caregiver’s mother.)

* Over half of caregivers are employed while caregiving; and…

* Caregivers provide an average of 19 hours of caregiving per week (in addition to their regular employment.)

It is worthwhile to note that according to this study most of these caregivers are unpaid for the care they give, which makes sense if they are caring for a family member and are doing it voluntarily—but a full 43% said that they felt they did not have a choice to take on the role.

Our office can’t prevent you from one day needing a caregiver (or one day having to serve as a caregiver) but we can help you plan for when that day may come. Thinking and planning ahead can keep you—and your loved ones—from ending up in a situation where you feel you have no choice.

Posted in Elder Law | Leave a comment

How Do You Know If You Need An Estate Plan?

Posted on March 16, 2012 by Angela

Most people know that they should execute some kind of estate plan eventually, but don’t think that they actually need one right now. On our blog we spend a lot of time telling people that they do need an estate plan, and that they need one right now—or as soon as possible! But it’s not always easy for a layperson to know for sure if and when the time is right. Answering the following questions will help you determine when your family may need an estate plan, and if now is the time to take action.

Do you own a house?

Owning your own home means you have at least one significant asset, which affects your need for planning in a number of ways: First, a piece of property cannot be split between people, it will have to be sold (which can take months or even years) and the proceeds divided among your heirs—often at a loss, especially if the house was undervalued to sell quickly. Second, many people who feel they have “small estates and won’t have to worry about Probate or the estate tax” are surprised when they find that the value of their home does indeed push their estate over the line. Third, if you are married you may need to make provisions for your spouse if you would like them to be able to continue to live in your home.

Do you have minor children?

If you have minor children and have not made provisions for them in case of your death or incapacity the government will be in charge of their futures. This could mean your children are put in the care of foster parents or become wards of the state. That is not a chance you want to take.

Do you want your heirs to receive their inheritance immediately and in full, instead of having to wait months (or years) before receiving what may be only a percentage of what you left them?

Probate is a long and expensive process. Without a plan in place your assets will have to be probated before they can be distributed. Not only does this often take years, but the probate fees (which can be considerable) are taken out of your estate—leaving less for your heirs.

Do you know how you want to spend your final moments?

Most people don’t die quickly and quietly at the ripe old age of 98. Most people fall victim to accidents, illness or dementia—unable to make their own health care decisions. Without a healthcare directive or living will that specifically outlines your wishes and instructions for your health care and nominating an agent to carry out those wishes, you could end up in a Terri Schiavo situation—costing your loved ones both financially and emotionally.

If you answered yes to any of these questions then NOW is the time to get started on your estate plan. You may need something small and simple, or you may need a plan that is more comprehensive. Not all plans are created equal, and our office can help you design the one that will be the right fit for your individual family needs. Contact us today.

Posted in Estate Planning | Leave a comment

Is Mom Just Forgetful Or Is This Dementia?

Posted on March 15, 2012 by Angela

When Dad died last year, Mom insisted that she could still manage to live in the house alone. However, for the past few months, you’ve noticed that things haven’t been quite normal when you’ve visited. Last week Mom couldn’t find her purse, and you found it in the freezer. Also, lately Mom has seemed confused about seemingly routine events. Even though you drive her to church every Sunday, last week when you arrived Mom wasn’t ready for church and didn’t remember that it was Sunday. When she we were ready to leave church, Mom asked, “Are the people who brought me here going to take me home?” You and your brother are worried that Mom may have dementia, but your sister has pointed out that Mom has always been forgetful and doesn’t think that you need to worry. How can you be sure that it is still safe for Mom to live alone?

While some memory loss is normal as we age, frequent and noticeable forgetfulness could be a sign that your loved one suffers from dementia. Normal forgetfulness does not worsen with time, but dementia often becomes more pronounced and disabling as time goes by. While forgetting the name of someone you met last week is normal, forgetting that your children take you to church every week is not. Also, people with dementia often act illogically. A few years ago, Mom might have left her purse in a different room and forgotten where she left it – a sign of forgetfulness. This time, putting her purse in the freezer may have made perfect sense to Mom, but you know that it is an unusual behavior. Mom is no longer able to recognize that her behavior is abnormal because of the way in which dementia has affected her brain.

Caring for a parent or other older loved one can often be difficult and confusing. Because diseases like Alzheimer’s are so often a topic of discussion in today’s society, many caregivers panic at the first sign that their loved one could have dementia. If you suspect that someone you know has dementia, it is important to schedule an appointment with a doctor so that they can be assessed for mental impairment. Until then, being able to recognize the differences between dementia and relatively normal “senior moments” can help alleviate your concerns and can allow you to make better decisions about your loved one’s daily needs.

Posted in Dementia | Leave a comment

Advice for Executors: How to Manage Final Medical Expenses

Posted on March 14, 2012 by Angela

Most people die in a hospital; sometimes after a long and slow decline, sometimes after a quick and unexpected tragedy. If you are an executor of the deceased’s estate this is significant because it means that there are usually final medical bills to be paid. What most executors do not know is that these final medical bills are not necessarily just like all the other final expenses, especially when it comes to filing a final tax return for the estate; this article from SmartMoney.com explains why.

“…When a person incurs medical expenses and dies before they are paid, the executor of the decedent’s estate can elect to treat those medical expenses as if they were paid when incurred – as long as the estate pays the expenses within one year after the date of death. In other words, this election allows those expenses to be deducted on the decedent’s final Form 1040, even though they were not paid by the date of death.”

Many executors may not think of this because medical expenses can only be deducted if they exceed a certain percentage of the deceased’s adjusted gross income (7.5% to be exact); but health care being what it is, final medical expenses can quite often reach this point.

This sounds easy, but be careful if the deceased’s estate exceeds the $3.5 million estate tax exemption—you may want to look into other options. The article suggests that in this case it might be beneficial to “forgo the election and count the unpaid medical expenses as liabilities on the estate tax return.”

As the executor of an estate you may have more options than you are aware of when it comes to taxes, probate, and achieving the best results for the beneficiaries. If you are unsure about any of these—or other—issues, please contact our office, we can help advise you on all angles of the trustee or probate process.

Posted in Elder Law, Estate and Trust Administration | Leave a comment

Estate Plan Forgery: How to Tell and What to Do

Posted on March 12, 2012 by Angela

The question of will forgery or undue influence of a testator is not a common question, but one that does come up periodically in an estate planner’s office. The movies have given people certain expectations when it comes to a death in the family and probating a will: a book-lined office, the entire family assembled for a formal reading of the will, shocked and angry reactions as a loved one’s fortune goes to an unknown and unlikely character…

This Hollywood portrayal may be generally off base, but the basic premise is based on the very real feelings that come with the death of a loved one: helplessness, confusion, familial bonds, and sometimes even betrayal. A will doesn’t have to be forged for there to be strong feelings of anger or suspicion when the contents end up being different than the family was led to expect. And while forged or secret wills may not be as common as the movies would have us believe, they aren’t completely unheard of either.

So what should you do if you suspect that the will of a loved one has been forged or tampered with? First of all, don’t try to deal with the situation alone. Dealing with the death of a loved one is stressful and emotional, and everyone—including you—is likely to be quicker than usual to react without thinking. Instead, seek the advice of a trusted third party (an estate or probate lawyer is ideal,) someone who can help you distance yourself and look at the situation objectively.

Will forgeries are very rare, but incidents of testators (especially elderly testators) being unduly influenced by a selfishly motivated caregiver or family member are much more common. If you suspect foul play was involved in the creation of a loved one’s will, make an appointment with an estate or probate specialist. We can help you work through your suspicions in a safe environment and explore your options should you feel the need to take action.

Posted in Elder Law, Estate Planning | Leave a comment

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