Plan Now So Guardianship is not Necessary

Estate Planning Advice
for Every Stage of Life.

Plan Now So Guardianship is not Necessary

Here’s a scenario that some family members sadly face: They contact their estate planning attorney to explain that an elderly relative is no longer able to care for himself or herself. Perhaps the family members just went to visit the loved one and found filthy living conditions, bills piled up, and little food in the home.

“We want to be able to help,” they tell the attorney. “What can we do?”

The attorney asks: “Do you have a power of attorney so you can handle financial matters or a power of attorney or health care proxy so you can make medical decisions?”

Unfortunately, the elderly relative never got around to executing those documents.

Because no one has a power of attorney or health care proxy, the family can turn to a court to have someone appointed as a guardian. (In some states, guardians are called “guardians of the person” who handle personal issues or “conservators” who handle financial issues.) If desired, there can be more than one person appointed — one to handle financial matters and another to handle health care issues.

But the guardianship process can be time consuming, contentious, and expensive. It should be seen as a last resort after less drastic measures are examined.

Here are the basics of what happens when an individual wants to be appointed a guardian.

Before petitioning the court for guardianship, family members (or in some cases, concerned third parties) need to compile some documentation that shows the individual “lacks capacity” to care for him or herself. The process generally involves an evaluation from one or more physicians and other medical professionals, as well as sworn statements from witnesses and other written documentation. This evidence will be used in an attempt to prove to the court that the person is incapacitated.

Next, a petition is filed with the court. The individual (sometimes called a potential “ward”) and other interested parties will be served with a summons or given notice of the proceeding. An incapacity hearing will be held to present the evidence. The potential ward has the right to an attorney and he or she (as well as other interested parties) can dispute the evidence.

Ultimately, the court will decide:

      • If the individual is incapacitated;
      • Who will serve as guardian; and
      • What the responsibilities of the guardian will be.

The process can take weeks or months. (The family may be able to get an emergency guardian appointed on a temporary basis.) The court costs and legal fees can be expensive.

The court will examine the guardian’s ability to be trusted to make either financial or health care decisions — or both.

In some states, there are requirements to become a guardian. For example, a criminal background check may be required and a guardian may have to take a class after appointment to learn about the responsibilities. The guardian may need to be a state resident or a lineal descendant.

What if more than one person wants to serve as a guardian? In these cases, the court decides who is best suited for the position.

After an appointment is made, the guardian is monitored by the court and generally must file periodic reports. The guardian or guardians must make decisions about where the ward will live, what kind of medical care should be administered, and how finances should be handled.

This is a basic overview of the process. There are different types of guardianship and the exact procedures depend on state law.

Petitioning for guardianship is usually a difficult and painful decision. The elderly loved one may be angry about the decision and the loss of independence. In those cases, the proceedings can become adversarial.

How Can You Avoid this in Your Family?

In order to avoid court intervention, you should have certain legal documents drafted as soon as possible (see right-hand box). Choose the person(s) you want to make financial and health care decisions on your behalf. Having these documents in place is an inexpensive alternative to going to court for guardianship. Once a person is incapacitated and unable to make responsible day-to-day decisions, it is too late to get these routine documents drafted.

A guardian or conservator appointment can cost 10 times as much (or more) as getting the alternative documents executed. This is truly an example of why it is better to plan in advance, rather than waiting until a situation is out of control.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

What to Do if a Sibling Keeps You Away from Your Elderly Parents

Estate Planning Advice
for Every Stage of Life.

What to Do if a Sibling Keeps You Away from Your Elderly Parents

Consider this scenario: Your elderly father begins to lose his mental capacity. He lives in his own home and is relatively well-off financially. Your sister is unemployed and moves in with your father. She pays no rent and may even be taking money from Dad. You live in another city across the country, which was what your father always encouraged you to do … to fly the nest and live your own life.

Suddenly your sister seems to have absolute control of your elderly father. You attempt to contact your dad on the phone but no one answers. Or you attempt to visit your father and your sister refuses to let you into the home.

Your sister claims that she is the one taking care of your father and accuses you of abandoning him.

What Could Happen?

In these situations, some people find out after a parent dies that a new will was drafted during the time when a sibling was shut out. The new will leaves everything to the person living with the elderly parent. That sibling may convince the parent not to tell his or her other children about the change in a will.

The parent may be told the other children never call, never visit and perhaps don’t even love the parent — all the while leaving out the fact that the other siblings are being prevented access. This may sound a bit unbelievable but it happens in many circumstances.

The dynamics of families often continue as parents become elderly and more vulnerable. That means that heated rivalries may occur — and adult children who have freeloaded off their parents for years may latch onto them even more.

Note: The person controlling an elderly parent doesn’t have to be part of the family. In some cases, it can be a housekeeper, neighbor or a stranger. The motives are the same — to make the elderly parent believe that the controlling individual is the only one who cares enough to help.

What to Do

If you believe a sibling is keeping you from your parent, your instincts may be correct. Instincts are often based on facts. If you cannot get in touch with your parent and are prevented from seeing him or her, it is a form of elder abuse. Someone who is exerting complete control over an elderly person is evidence of elder abuse. You can contact the adult protective services governmental agency in your area, explain the situation and inquire about an investigation.

Usually, government agencies will send someone to a parent’s home to interview him or her. If possible, ask to go along with them. If the agency says “no,” because it wants an objective opinion, make sure that the controlling sibling is not present when they are interviewing your parent. Ask the investigator to tell your parent that you have been trying to get in touch with him or her.

If you cannot get an investigator to make a visit, or if the investigator decides that your parent has his or her full capacity and is free to come and go, then you may want to seek court intervention if you believe your parent does not have the ability to make decisions.

You can also bypass the step of contacting the governmental agency, and file a petition in court for a guardianship if you believe your parent does not have the capacity to make decisions or if the situation seems urgent.

How to Prevent this from Happening

If you remain in contact with your parent and believe that a controlling sibling (or even an outsider such as a housekeeper or neighbor) is taking advantage of your parent, suggest to your parent to get the proper estate planning documents in place. This can help your family from being blindsided by issues later on. Speak with your attorney about these issues.

When Caregiving is Done by One Sibling in an Inequitable Way

This article focuses on situations in which one sibling keeps other family members away from an elderly parent with the intent to defraud the individual. But there are also families in which one sibling does the bulk of the caregiving — either out of choice or necessity — because the individual lives nearby, doesn’t work full time, or is just more compassionate than other siblings.

Even worse, the family members who are not bearing the brunt of the responsibility sometimes criticize or second-guess the decisions the caregiver makes.

In these cases, resentment and anger build up. It is best if caregiving chores are spread out among siblings as much as possible. Unfortunately, that’s not always feasible. If you are unable to provide the physical assistance on a regular basis, here are some ideas:

      • Pitch in temporarily so the caregiver can take a break.
      • Pay for a housecleaner, a home health aide or other service that can make the life of the caregiver easier.
      • Buy groceries or pick up medications.
      • Provide regular emotional support to a sibling who has disrupted his or her life to care for a parent.
PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

ESTATE PLAN RESOURCE

Estate Planning Advice
for Every Stage of Life.

What to Do if a Sibling Keeps You Away from Your Elderly Parents

Consider this scenario: Your elderly father begins to lose his mental capacity. He lives in his own home and is relatively well-off financially. Your sister is unemployed and moves in with your father. She pays no rent and may even be taking money from Dad. You live in another city across the country, which was what your father always encouraged you to do … to fly the nest and live your own life.

Suddenly your sister seems to have absolute control of your elderly father. You attempt to contact your dad on the phone but no one answers. Or you attempt to visit your father and your sister refuses to let you into the home.

Your sister claims that she is the one taking care of your father and accuses you of abandoning him.

What Could Happen?

In these situations, some people find out after a parent dies that a new will was drafted during the time when a sibling was shut out. The new will leaves everything to the person living with the elderly parent. That sibling may convince the parent not to tell his or her other children about the change in a will.

The parent may be told the other children never call, never visit and perhaps don’t even love the parent — all the while leaving out the fact that the other siblings are being prevented access. This may sound a bit unbelievable but it happens in many circumstances.

The dynamics of families often continue as parents become elderly and more vulnerable. That means that heated rivalries may occur — and adult children who have freeloaded off their parents for years may latch onto them even more.

Note: The person controlling an elderly parent doesn’t have to be part of the family. In some cases, it can be a housekeeper, neighbor or a stranger. The motives are the same — to make the elderly parent believe that the controlling individual is the only one who cares enough to help.

What to Do

If you believe a sibling is keeping you from your parent, your instincts may be correct. Instincts are often based on facts. If you cannot get in touch with your parent and are prevented from seeing him or her, it is a form of elder abuse. Someone who is exerting complete control over an elderly person is evidence of elder abuse. You can contact the adult protective services governmental agency in your area, explain the situation and inquire about an investigation.

Usually, government agencies will send someone to a parent’s home to interview him or her. If possible, ask to go along with them. If the agency says “no,” because it wants an objective opinion, make sure that the controlling sibling is not present when they are interviewing your parent. Ask the investigator to tell your parent that you have been trying to get in touch with him or her.

If you cannot get an investigator to make a visit, or if the investigator decides that your parent has his or her full capacity and is free to come and go, then you may want to seek court intervention if you believe your parent does not have the ability to make decisions.

You can also bypass the step of contacting the governmental agency, and file a petition in court for a guardianship if you believe your parent does not have the capacity to make decisions or if the situation seems urgent.

How to Prevent this from Happening

If you remain in contact with your parent and believe that a controlling sibling (or even an outsider such as a housekeeper or neighbor) is taking advantage of your parent, suggest to your parent to get the proper estate planning documents in place. This can help your family from being blindsided by issues later on. Speak with your attorney about these issues.

When Caregiving is Done by One Sibling in an Inequitable Way

This article focuses on situations in which one sibling keeps other family members away from an elderly parent with the intent to defraud the individual. But there are also families in which one sibling does the bulk of the caregiving — either out of choice or necessity — because the individual lives nearby, doesn’t work full time, or is just more compassionate than other siblings.

Even worse, the family members who are not bearing the brunt of the responsibility sometimes criticize or second-guess the decisions the caregiver makes.

In these cases, resentment and anger build up. It is best if caregiving chores are spread out among siblings as much as possible. Unfortunately, that’s not always feasible. If you are unable to provide the physical assistance on a regular basis, here are some ideas:

  • Pitch in temporarily so the caregiver can take a break.
  • Pay for a housecleaner, a home health aide or other service that can make the life of the caregiver easier.
  • Buy groceries or pick up medications.
  • Provide regular emotional support to a sibling who has disrupted his or her life to care for a parent.

Have an estate planning question or concern? Please let us know! Call us at 630.665.2300 or click the button to schedule a free consultation.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100, Wheaton, IL 60189

Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com

The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

What You Should Know About Medicaid Planning

Estate Planning Advice
for Every Stage of Life.

What You Should Know About Medicaid Planning

You’re active and in relatively good health. You’re finally enjoying the things you now have time to do as a retiree – or looking forward to those days coming soon. The last thing you want to think about is how you’re going to pay for long-term care.

Not only does this issue seem so far removed from your current lifestyle, but it’s a daunting one to think about.

However, those over age 55 can’t escape the fact that the longer they live, the likelihood increases that some type of long-term care service will be needed. It’s a real possibility that as people age, costs for in-home or nursing home care could consume their life savings. Not only is there a concern about having sufficient income to meet these needs, but the legacy they spent years building to pass on to loved ones could be easily devoured.

According to 2018 projections of health-care costs, a healthy 65-year-old couple today will need over $385,000 to pay for health-care costs during their remaining years. In light of this, another study revealed that nearly 80% of middle-income Baby Boomers have no savings assigned for long-term care. Even more alarming, over 80% of this segment also expressed that long-term care planning was currently not a high priority for them.

Medicare to the rescue?

Many are under the assumption that Medicare will help cover long-term care costs. This is a myth. Medicare is a federal health insurance program seniors receive at age 65 or older. Although it will help cover short-term nursing home costs after a major medical incident, it will not cover long-term care in nursing homes, assisted living facilities or at home.

What about Medicaid?

Medicaid is a combined federal and state health insurance program intended for low-income people and covers medical care costs and some types of long-term care costs. However, each state has its own eligibility requirements. The rules and standards established by each state are strict, so it’s not easy to qualify. Applicants must meet an asset limit amount designated by their state, which can often be an unattainable standard. Many find they must exhaust their assets by paying outright for nursing home care before they can be eligible for Medicaid.

How does the Medicaid “Spend Down” work?

Particularly for the elderly, a common option to qualify for Medicaid assistance is to “spend down” excess, non-exempt assets below the required state limits. As long as assets aren’t given away or sold for significantly less than they’re worth, most spending is fine. However, some methods of transferring assets such as gifting or using non-exempt assets to purchase other non-exempt assets could put someone in violation of state rules, so it helps to seek professional counsel in this area.

Consider the Medicaid “Look-Back Rules”

Unfortunately, spending down assets is not as straight forward as it looks since Medicare has set up an additional hurdle called the “look-back rules.”

Under the look-back rules, all qualifying assets must be transferred over five years (60 months) from the date of the Medicaid application. Any non-exempt assets held within this time period will be counted as ownership and a waiting period will be incurred before someone can qualify. The rules for calculating the waiting period are complex, but eligibility is generally denied until the look-back period is free of transfers of less than fair market value. States are strict, so it’s imperative applicants keep detailed records to prove where assets were placed in order to qualify.

Beware the future claims against your estate

Some assets are exempt from qualifying for Medicaid such as cars, personal belongings and primary homes. However, after you die, it’s likely the state will place a claim against your estate if you received long-term care through Medicaid while over age 55. This process is known as Medicaid estate recovery. However, if you still have a living spouse, minor children or disabled children, it will not attempt to do so. Only in the case of a living spouse will the state recover its costs from your estate once he or she dies.

The best plan is having a plan

Unfortunately, it’s impossible to put a dollar amount on the actual cost of someone’s long-term care. But one thing is for sure. The sooner you start planning, the better your options for the future. Whether it’s for you or a family member, it’s a good idea to obtain professional advice from a trusted estate planning attorney and/or financial advisor to get started and make sure you’re headed in the right direction.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

Elder Law: Representing the Whole Person

Estate Planning Advice
for Every Stage of Life.

Elder Law: Representing the Whole Person

Elder law is an area of legal practice that is quickly growing as the population ages. The idea behind elder law is unique because it deals holistically with the whole person, rather than handling just single legal issues.

While many of the concerns of elder law — such as estate planning, healthcare directives, age discrimination, disability and nursing home care — can apply to any age group, they are particularly important to the elderly. Elder law also deals with Medicare and Medicaid issues, including clearing up misconceptions about what Medicare and Medicaid will and will not pay for.

For many people, the primary concern of elder law is making arrangements for incapacitation when they can no longer manage their affairs.

Another focus is determining how a patient’s debts will be paid if he or she is no longer able to physically handle that task or requires high-cost nursing care. Often, attorneys are charged with creating power of attorney documents for the disabled elderly, which designate someone as a guardian to manage financial and medical affairs. Without a power of attorney, it’s up to the courts to designate a guardian.

Your attorney can review contracts for continuing care retirement communities, which can be very complex, and make certain you understand a contract and its ramifications. For example, once a couple lives in a retirement community, what happens if one spouse needs a higher level of service? Who makes the decision?

Not surprisingly, the cost of necessary care and how to finance it is especially important. While the purchase of long-term care insurance can help offset costs, such insurance is difficult to acquire when an insurance company realizes the elderly individual is likely to make a claim. Unfortunately, most people begin to think about long-term insurance when it’s too late. (As insurers sometimes point out, you can’t insure a building when it’s ablaze.)

To Protect Yourself:

      • Have all legal paperwork — advance directives, guardianship and so forth — in place before an emergency occurs.
      • Begin planning while you are young. Don’t wait until retirement.
      • Work with an attorney who understands estates, trusts and protecting assets, while helping insure you will be able to afford the care you need.

For such a young area of law, there is a bright future: Elder law is a practice that is evolving and providing protection for older people as the population lives increasingly longer.

 Quality of Care

 One event that profoundly impacted elder law is the Nursing Home Reform Act of 1987. This legislation radically transformed how nursing homes cared for residents, and the quality of care came under scrutiny. 

For instance, restraints are intended to prevent residents from injury, and the Act prescribes when and how restraints can be used. Yet when residents and their families, as well as nursing home staff, eased off in the use of restraints, the result turned out to be fewer accidents and a general improvement in morale on the part of both residents and staff. Other regulations followed.

Elder lawyers also sometimes deal with situations involving grandchildren. For instance, they handle the legal ramifications of grandparents who are raising their grandchildren. And they fight for visitation rights for grandparents denied access to grandchildren because of a bitter divorce.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

Beware of Predatory Lenders

Estate Planning Advice
for Every Stage of Life.

Beware of Predatory Lenders

Older Americans have often built up one solid form of financial security — equity in their homes. But they are often living on fixed incomes and unexpected expenses come up, such as costly home repairs, property taxes and medical care.

This makes older homeowners a target for predatory lenders, who market home equity loans using deceptive and intimidating tactics that include high fees, hidden payments, and other difficult terms that could lead to the loss of property through foreclosure.

Here are some of the steps you can take to avoid being the victim of a predatory lender:

Use caution.  Be suspicious of “bargain loans,” offers that are “good for a very short time,” and anyone who makes the first contact. Most reputable finance companies don’t solicit business.

Never act quickly.  Avoid lenders who take applications over the phone, promise guaranteed low-interest loans, or offer next-day approval for money paid in advance.

Watch out for home improvement scams.  Home improvement contractors often refer older people to predatory lenders. The contractors, who are working with the mortgage companies on commission, convince homeowners that repairs are needed and that easy financing can be arranged. Even worse, the contractors often don’t finish, or even start, the work.

Shop around. Contact local financial institutions to see if you are eligible for a loan from a local bank, credit union, or mortgage company. Compare total costs as well as interest rates and be clear about the points and fees. Check with the Better Business Bureau.

Avoid balloon payments. It may sound attractive to have low monthly payments and a big payment only at the end of the loan period. But remember that the borrower is obliged to make that payment or the lender can foreclose. Some lenders may promise to help refinance that final payment, but this may be simply a scam to get higher fees and closing costs.

Read carefully. Borrowers should never sign anything they don’t fully understand. Go elsewhere if the lender won’t change the contract or explain to your satisfaction. And never sign any document with blank spaces.

Think about a reverse mortgage.   A reverse mortgage is an alternative to a home equity loan. These mortgages provide money that doesn’t have to be repaid until the borrower moves, sells the house or dies. The money can be taken as a lump sum, monthly payments or a combination. But shop carefully. Illegal and unethical lending practices also exist with reverse mortgages.

Do not buy credit insurance. This insurance is extremely profitable for the lender, but provides little or no benefit to the borrower. The insurance is financed over the life of the loan, so premiums are expensive. The same amount of insurance can generally be purchased elsewhere for much less.

Take Action. If you or someone you know has been victimized, inform the appropriate regulatory and law enforcement agencies, such as the state Attorney General’s Office and the local police department.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

Nursing Home Fraud: Studies Expose a Little-Known Risk

Estate Planning Advice
for Every Stage of Life.

Nursing Home Fraud: Studies Expose a Little-Known Risk

Putting a loved one in a nursing home is one of life’s hardest decisions. So you can imagine how devastating it is to discover that a trusted nursing home administrator has been forging a resident’s signature or stealing his or her assets. It can happen. This type of fraud can cost nursing home residents more per incident than frauds committed by opportunistic strangers or relatives. How can you protect your loved ones?

Estimated Losses

Although it peaks at year end, elder financial abuse occurs throughout the year. Americans age 60 and older lost an estimated $2.9 billion to financial exploitation, according to the Metlife study. This estimate exposes just the tip of the iceberg, however. It covers only reportedfinancial abuse cases involving senior citizens.

For each case of financial exploitation that authorities prosecute, the New York State Elder Abuse Prevalence Study estimates that another 44 financial exploitations go unreported. That’s why elder financial abuse has been dubbed “The Crime of the 21st century.”

The Trusted Thief

Most stories about elder financial exploitation focus on family or friends who abuse their roles as caretakers and guardians. News agencies also report numerous incidents of Medicare or Medicaid fraud that cost taxpayers millions of dollars each year. These high profile financial scams overshadow another costly scam perpetrated by trusted professionals — nursing home fraud.

Nursing home administrators commit an estimated 6% of financial exploitations, according to the Metlife study. But frauds committed by legitimate businesses — including nursing homes — tend to result in a higher average loss per incident than losses from friends, family members or strangers. In fact, nursing homes and other businesses caused 39% of the total losses from senior financial abuse.

Examples of nursing home frauds committed by bookkeepers, office managers and other nursing home administrators include:

      • Diverted Social Security checks,
      • Forged or coerced signatures,
      • Checks written for cash or the administrator’s personal expenses,
      • Misappropriated nursing home account refunds,
      • Identity theft, and
      • Improper use of conservatorship.

One prosecuted case involves a business office coordinator of a convalescent and rehabilitation center in Mississippi. The individual pled guilty to 29 counts of exploitation of a vulnerable person and one count of conspiracy. She allegedly stole more than $100,000 from residents’ trust funds.

Protecting Your Loved One

You might wonder how a crime like this happens — and just how prevalent it is. One USA Today investigation reports that more than 100 cases involving thefts from nursing home trust funds have occurred in the United States since 2010.

So, what can you do to help parents, grandparents and other loved ones living in a nursing home from getting swindled?

Do your homework. When you’re selecting a rehabilitation or nursing facility, ask questions about the internal controls they’ve implemented to prevent and detect elder financial abuse:

      • Does the facility conduct credit and criminal background checks on all employees (not just doctors, nurses and other caregivers)?
      • Does the facility have a written statement of residents’ rights?
      • Has the facility ever caught an employee stealing — and how was it handled?
      • Does the facility have formal policies and procedures in place to investigate fraud allegations?

Involve family members in financial matters. Many residents start in their facility’s assisted-living wing and move to rehab or convalescent wings as their needs change. Residents have the right to handle their personal finances — and people in assist-living arrangements often do. But it’s a good idea for high-functioning seniors to fill trusted family members in on their finances, including account numbers, names of advisors and personal balance sheets. They also might assign power of attorney to someone who’s trusted, unbiased and financially secure themselves.

As a senior’s cognitive abilities start to decline, family members may invoke financial power of attorney or be granted guardianship. Most facilities don’t mandate control over their residents’ finances. Relatives can retain control, although it can be time consuming to manage another person’s income and expenses.

If the nursing home handles a loved one’s finances, watch for these warning signs:

      • Sudden changes in account balances, banks or professional advisors;
      • Unusual purchases or gifts to caregivers;
      • Unauthorized ATM withdrawals;
      • Unfamiliar signatures on checks or legal documents;
      • Unexplained disappearances of valuable possessions;
      • Unpaid bills, despite adequate financial resources; and
      • Deteriorated credit scores.

If you notice any of these red flags, notify the nursing home and your attorney immediately.

Listen to your loved ones. Above all, if an elderly relative reports financial exploitation, take him or her seriously. It’s easy to dismiss a complaint as part of a faltering mental condition, especially if the senior appears to be otherwise well cared-for. But the costs of elder financial abuse go beyond monetary losses and may include feelings of insecurity or loss of self-worth — especially if no one listens to them.

The good news is that if a nursing home administrator is convicted of stealing your loved one’s assets, the facility’s insurance will reimburse your economic losses. If a senior takes valuable assets — such as cameras, furniture or jewelry — into a nursing home, list and photograph the items to help support insurance claims if the possessions are lost or stolen.

To Catch a Thief

When nursing home employees are caught red-handed, it’s usually through an internal audit or a tip from a co-worker. But others may notice unusual trends, too.

Banks on the Front Line

Many states require banks to report suspicious withdrawals, coercive caretakers and other unusual behaviors. These obligations override a customer’s privacy rights, according to guidance issued by eight federal agencies in September, including the:

      • Board of Governors of the Federal Reserve System,

      • Federal Deposit Insurance Corporation (FDIC),

      • Federal Trade Commission (FTC), and

      • Securities and Exchange Commission (SEC).

So, encourage senior relatives to get to know tellers, as well as to update their signatures and contact information at their banks or credit unions.

Bank employees can be an elderly person’s front line of defense. For example, the office manager of a Texas nursing home was caught when a bank teller noticed that endorsements on checks didn’t match the signatures on file at the bank. She pled guilty to stealing more than $350,000 from 110 residents — and was ordered to serve 10 years of supervised community release.

Take Matters in Your Hands

You can help protect a loved one from nursing home fraud by requesting monthly trust fund statements and copies of all receipts.

Although it’s prudent to examine these documents monthly, would-be fraudsters don’t know how often these records are reviewed. Just the idea that someone is looking over their shoulders is often enough to make dishonest people think twice about stealing. Frequent, unplanned visits and outings also dissuade fraudsters — and they give lonely seniors something to look forward to.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

Assisted Living Costs You Should Know

Estate Planning Advice
for Every Stage of Life.

Assisted Living Costs You Should Know

In recent years, assisted living facilities have become a popular option for elderly people who don’t need the level of care offered in a nursing home but need assistance with activities of daily living.

To make an informed choice among the many facilities available, you need information about staff qualifications, services, costs, potential increases in fees and the circumstances that could lead to an involuntary discharge from the facility.

The average monthly base rate varies in different parts of the country. Residents often pay additional fees for special care units and other services, such as medication administration and transportation. Two thirds of assisted living residents pay out-of-pocket, although long-term care insurance may pay some costs for those with coverage.

In general, there are three rate structures to consider:

1. Flat Monthly Rate.This varies depending on the accommodations (semi-private or private rooms, suites shared bathrooms, studios with or without kitchens and one, two, or three bedroom apartments.) The monthly rent usually includes daily meals, housekeeping, laundry and transportation services. Ask about the number of meals served, inclusion of snacks, size, location and view of the room. All of these can affect the rate.

2. Base Plus.Under this structure, you pay the flat monthly fee and choose other services, each adding to the bill. For example, the amount of care under the base rate could be 30 minutes a day and anything else, such as bathing, grooming, dressing and monitoring medications, will cost extra. This can add as much as $2,000 a month to the cost.

3. Tiered Rates. This structure blends the flat rate and à la carte menu into specific levels of care, with the costs increasing along with the assistance provided. A facility’s tiered structure might work like this:

Tier One
The base rate plus
Three meals daily, daily snacks, therapeutic diets, weekly housekeeping, occasional assistance with daily activities, social, cultural and educational programs, scheduled transportation, emergency-call system, health and wellness assessments, and medication reminders
Tier Two
Tier One Services plus
Regular assistance with daily activities, assistance with self-managed incontinence, supervision of medication, occasional reality orientation, and
occasional escort service to meals and activities
Tier Three
Tier One and Two Services plus
Frequent assistance with daily activities, assistance with manageable incontinence, daily housekeeping, medication administration, escort service to meals and activities, and frequent reality orientation

The tiered structure typically continues to a level five with additional fees as the care becomes more intensive.

The price you pay the first year is likely to increase over time, perhaps substantially, so look into the past decade of price changes at facilities you are interested in. That can give you an indication of future costs.

When calculating costs, keep in mind that many of the usual costs of living will no longer apply to the person moving into an assisted living facility, including:

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

What are Your Rights as a Nursing Home Resident?

Estate Planning Advice
for Every Stage of Life.

What are Your Rights as a Nursing Home Resident?

The stress of moving into a nursing home is great — and it’s compounded by the loss of freedom, dignity and privacy.

Adding to the anxiety is the fact that people moving to an elder care facility often have no choice. They may no longer be able to care for themselves without risking injury.

Family members should become advocates and observe their loved one’s care and living conditions. Concerns should be discussed with the staff. And be aware that federal laws and various state laws provide nursing home residents with specific rights. For example, under the Nursing Home Reform Act, a number of protections are present, including:

Privacy and Confidentiality:

Residents can keep and use personal belongings and property as long as the items don’t interfere with the rights, health, or safety of others.

Married couples can share a room if both spouses reside in the same facility.

Confidential medical and personal records must be made available. Residents have the right to review their medical records within 24 hours of making a request, and staff members must ask permission to release personal records to others.

Residents are allowed privacy in their rooms and during medical treatments. Privacy should also be available during telephone calls, visits and meetings with other residents. Mail should be received unopened. Residents have the right to see family members, a resident advocate, a physician, service providers, or representatives of the state or federal government.

Residents can plan their own daily activities, wear their own clothes, and participate in social, religious, and community activities that do not interfere with the rights of other residents.

Medical Care:

Medications and treatments can be refused. Residents have the right to see their own doctors and must be informed about their conditions and medications.

Equal access to quality care must be provided, regardless of whether residents pay privately or receive Medicare or Medicaid benefits.

Financial:

Residents can ask a nursing home to handle personal funds, but the facility must follow state and federal recordkeeping requirements. However, residents also have the right to manage their own finances unless a guardian or conservator has been appointed.

Relocation:

Notice must be received before a resident’s room or roommate is changed.

Residents can refuse transfer to another room if the purpose is to move from a Medicare bed to a Medicaid bed, or vice versa. When it comes to a discharge or move for other reasons, such action must be necessary for the person’s welfare; required to protect other residents; or appropriate because care is no longer needed. A move or discharge can also be made because a resident failed to pay bills or the facility is closing.

Abuse:

Residents must be protected from physical and mental abuse, neglect, mistreatment and misappropriation of their property. They must be allowed to stay with other residents and remain free from physical or chemical restraints except in emergencies.

Grievances:

Complaints about care or treatment must be allowed without punishment.

Residents must be informed about their rights. The facility must provide a written statement of rights if asked. The facility must investigate all claims of violations and report the results of the investigation to authorities if warranted. There must be a quick resolution of grievances.

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

Keep Your Independence With Assisted Living

Estate Planning Advice
for Every Stage of Life.

Keep Your Independence With Assisted Living

Most elderly people don’t need nursing homes, but many require help with daily activities. If providing that support isn’t practical for family and friends, assisted living could be the answer.

Assisted living facilities fall somewhere between home care and nursing homes. They can provide various levels of help, depending on the individual’s needs. Assistance can range from basic housekeeping and medication monitoring to special arrangements for those with early-stage Alzheimer’s.

Some facilities have medical centers although the level of care is generally not as extensive as what is offered in a nursing home. Other services include help dressing, bathing, meals and reminders to eat.

In addition, assisted living facilities provide a social environment many elderly people crave.

Over the years, the choices have become increasingly diverse. They now include low budget to luxury facilities, studios to suites, kosher dining rooms, homes that cater to certain ethnic groups, and even facilities near college campuses that cater to alumni.

The federal government only provides minimal oversight of assisted living facilities. It does not provide regulation, as it does nursing homes that participate in federal funding programs. Instead, states license and regulate the facilities and the requirements vary widely so it’s important to carefully investigate any facility you are interested in.

Tally Up the Costs

An assisted living facility in many parts of the country is likely to average about $3,000 a month for basic care. And from there, the costs can increase depending on the services required. Generally speaking, the individuals (or their families) are responsible for paying the bills, rather than government programs making payments. Long-term care insurance can also cover some costs.

Tax Considerations

There are no specific deductions when it comes to assisted living, but there are many IRS rulings that support tax breaks when the primary purpose of the expense is to get medical care. In assisted living, that’s the norm.

Certain costs may be deductible if the assisted living resident has been certified by a licensed health care practitioner within the last 12 months as being unable to:

      • Perform at least two activities of daily living without help for 90 days.
      • Live safely without substantial supervision for 90 days.

If you provide the funds for your parent’s assisted living facility, you might qualify to deduct the payments. If two or more siblings help out, the family members might be able to take turns claiming the deduction via a multiple support agreement. Consult with your tax adviser for more information.

TAX COURT OKAYS MEDICAL DEDUCTION    

The fees paid by residents of a nursing home or a similar facility are deductible as medical expenses to the extent they are attributed to medical care. But one Tax Court case opened the door to bigger deductions. (Delbert L. and Margaret J. Baker, 122 TC No. 8) 
    Facts of the case: A resort-like gated retirement community owned by a nonprofit organization provided four different accommodation levels to officers of the U.S. military, their spouses and dependents:

      • Independent living apartments, duplexes and cottages.
      • An assisted living facility.
      • A special care unit for Alzheimer’s/Dementia.
      • A skilled nursing facility.

    The Bakers moved into the independent living unit that required them to pay an entrance fee of $130,000, plus ongoing monthly fees. This entitled them to lifetime residence at the California community, which operated a health center. The agreement also gave the couple the right to move to a different unit if their health deteriorated. The Bakers deducted $35,000 of the entrance fee as a medical expense.
    Eventually, the couple needed skilled nursing care. Based on the calculations of a committee at the community, they deducted about 40% of the fees (or $16,500) as medical expenses for the 1997 and 1998 tax years. The IRS, using an actuarial method projecting longevity and health care utilization, allowed the Bakers to deduct only $10,000 in monthly service fees. 
    The Tax Court approved the method used by the Bakers. The Court said the calculations by the committee effectively shifted the burden of proof to the IRS. As a result, the couple’s deduction was increased by more than 50%.
    The Court also examined whether the Bakers were entitled to deduct additional amounts for medical use of the pool, spa, and exercise facilities at the community. No deductions were allowed for those expenses because the couple did not establish the portion used for medical purposes.
     Remember that qualified medical expenses are deductible only to the extent the annual total exceeds 10% of AGI in 2018 (and 2017). Therefore, deductions are more readily available to retirees living on a fixed income than high wage-earners.  

PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group. 

What are the Powers of a Guardian?

Estate Planning Advice
for Every Stage of Life.

What are the Powers of a Guardian?

When loved ones become mentally incapacitated they may need a court-appointed guardian to handle their personal health care and financial needs.

That can be avoided if the individuals execute a durable power of attorney and a health care proxy before becoming incapacitated. But sometimes people fail to do that. A court-appointed guardian has powers to make many decisions on behalf of the individuals. In effect, the guardian steps into their shoes. The powers guardians have generally include:

Property Management

1. Collecting all income, including but not limited to Social Security, dividends and interest as well as dealing with pensions, retirement accounts such as IRAs, SEPs and similar types of plans and annuities.

2. Endorsing, collecting, negotiating, depositing and withdrawing Social Security, Veterans Administration, and negotiable instruments.

3. Handling all banking transactions, including setting up checking and savings accounts and certificates of deposit.

4. Accessing safe deposit boxes, vaults, safes, confidential financial records, reports and statements.

6. Applying for government and private benefits.

7. Claiming, negotiating, obtaining and settling claims and actions for government entitlements and benefits.

8. Acquiring and maintaining Medicare as well as dealing with Medicare and Medicaid claims, litigation and settlements.

9. Preparing and submitting applications for medical assistance and any required documentation.

10. Filing and signing tax returns and dealing with federal, state, and local tax authorities on claims, litigation, settlements and other matters.

11. Making and implementing tax-savings decisions.

12. Marshaling the person’s assets and investing them prudently and intelligently. Seeking  reasonable income and using as much of the income and principal as necessary for the person’s comfort, support, maintenance and well-being.

13. Providing for the person’s maintenance and support.

14. Applying assets toward the cost of appropriate care at a long-term care facility.

15. Paying or prepaying funeral expenses.

16. Settling bills after death, if the debts were incurred before death and the authority to pay such bills would otherwise have existed, until a temporary administrator or an executor is appointed.

17. Retaining attorneys, accountants, investment advisers and similar professionals to handle property and other affairs and paying them subject to court approval.

18. Applying for, paying and handling all claims and settlements including insurance transactions.

19. Handling estate transactions.

20. Defending or maintaining any civil judicial proceedings.

Personal Needs

1. Making decisions regarding the general environment and other social aspects of life.

2. Determining whether the person should travel.

3. Consenting to or refusing medical or dental treatment.

4. Choosing the person’s place of residence.

5. Accessing and disclosing medical and confidential records. In terms of finances or personal needs, the guardian can also take any other actions the court deems appropriate to meet the individual’s needs.

Clearly the guardian has considerable discretion, which is why the court usually requires an initial report of the incapacitated person’s finances and an annual accounting after that.

Despite the extensive list of powers, there are certain actions guardians cannot take. For example, they cannot transfer a person’s assets into their own names, nor can they borrow money from the person or make risky investments.

It is not easy being a guardian. There may be contention in a family as to who will be the guardian and many people find the job too difficult. With court oversight, the job can become cumbersome and the time and effort required can make it stressful, especially when the court requires detailed records of money spent on food and clothing and other activities.

However, most family members believe it is their moral obligation to help their loved ones.

If you feel someone needs a guardian, speak to your attorney, who can prepare a guardianship petition and assist with other matters.

To avoid having an individual become a guardian for you in the event you become incapacitated, have your attorney draft certain legal documents as soon as possible. Choose the person you want to make financial and health care decisions on your behalf. Having a financial power of attorney and a health care proxy in place will save your loved ones the burden and expense of going to court for guardianship. Once a person is incapacitated and unable to make day-to-day decisions, it is too late to get these routine documents drafted.

 
PERKINS & ZAYED, P.C.
1745 South Naperville Road, Suite 100
Wheaton, IL 60189
Phone: 630-665-2300 | Toll Free: 877-TRUST-50
Fax: 630-665-4343
Email: admin@trust-lawgroup.com
The information contained on this website is for informational and educational purposes only and is not legal, tax or financial advice. Always consult a qualified licensed attorney and/or appropriate professional to provide advice for your individual needs and circumstances. Use of this website does not create or constitute an attorney-client relationship. This website may include advertising material for Perkins & Zayed, P.C., The Estate and Trust Law Group.