Elder Law

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Elder law attorneys specialize in the legal issues facing older people, which may include issues almost as diverse as the entire legal spectrum. The main issues addressed, however, involve advanced planning. As people age, they become concerned about distributing their estates, establishing alternative decision makers in case of mental or physical incapacity, investigating possible long-term care needs (including the type of care and how to finance it), and otherwise ensuring a comfortable retirement. Often, people seek legal techniques for achieving these goals.

As our population ages, it is even more necessary for our society to become aware of the needs of the elderly, and ways to give them support. Families with aging parents or relatives must be aware of all the rights and benefits to which the elderly are entitled-- to make the aging experience as comfortable as possible for all parties concerned.
Proper estate planning and asset distribution before death can help the whole family. If this is done properly, an elderly person can receive the full value of Medicaid and Medicare benefits and can also preserve assets for an estate to benefit children and future generations.

Children of parents who are under home care, or in nursing homes or other assisted living arrangements, should make sure their parents are receiving all the benefits to which they are entitled. The services we offer at the O’Bryan Law Firm in our Elder Law practice include:

• Medicaid Planning
• Medicare Planning
• Wills & Trusts
• Asset Protection
• Special Needs Trusts
• Estate and Gift Taxes
• Living Wills
• Powers of Attorney
• Guardianships
• Conservatorships

A Plan to Deal with Alzheimer’s or other Incapacitating Health Problems.

Senior citizens should plan before the onset of an incapacitating disease such as Alzheimer’s. If you have a loved one who is already incapacitated, you and your family should seek legal advice on the best way to handle the situation.

Our law firm is available to visit you at home, or in a hospital, nursing home, or in an assisted living or hospice situation to advise you on elder law questions.
We want the elderly and their families to be educated on how to plan for the aging process and beyond. Our elder law attorneys are available to hold elder law seminars at nursing homes and other care facilities on such topics as:

• How to Avoid Probate and Estate Taxes
• Wills vs. Trusts: Which One is Right for You
• Medicaid: Learn the Rules for Qualifying Sooner than Later
• How to Protect Your Home and Savings from Long Term Care Costs
• All the Legal Tools You Need Now to Make Things Go Fast, Easy and Affordable for Your Family Later

Help Combat Elder Fraud

Unfortunately, many seniors today have fallen victim to individuals who seemingly want to be their friend, but in reality want to help themselves to their assets. This person doesn’t have to be a stranger. It can be anyone, including a caregiver, a neighbor, a family member or a long time acquaintance. If you know someone who you think is being taken advantage of, don’t wait, contact us immediately. There are actions that can be taken right away to protect the individual. In the meantime, here are a few helpful hints to keep yourself or a loved one from becoming a victim of fraud:

• Do not be intimidated into paying debts that you do not really owe. If you receive a phone call or a notice in the mail from someone alleging that you owe them money, make sure to verify the legitimacy of the charges, as well as the company sending you the notice. If you do not recognize the name of the company or the nature of the charges, do not be afraid to ask for help.

• Carefully review all bills, credit card statements and bank statements every month. If you see a charge that should not be there, contact the company issuing the statement immediately.

• Be wary of people coming to your home and asking to come inside or make repairs. A reputable company will call ahead and schedule an appointment to come to your home. Most of the utility companies will never need to come inside of your home to make repairs, and if they do, they will let you know on the phone ahead of time. Also, make sure to ask to see the employee’s identification and check their uniform and the vehicle they are driving to make sure that they are legitimate. If you are still unsure as to the identity of this individual, do not hesitate to call the company they are representing to verify his or her identity.

Common issues connected with nursing home care

Many elderly persons worry that they will be forced to go into a nursing home. Except in emergency situations, no one can be involuntarily committed to an institution unless a court authorizes the action after a hearing. At such a hearing, the court must determine whether an individual is mentally ill, unable to care for himself or herself, or a danger to himself or herself or others. A person subject to a hearing has the right to be represented by an attorney.

Another concern is how to finance a nursing home stay. Medicare only covers skilled nursing home care ordered by a doctor, involving daily skilled nursing activities or rehabilitation services that can only be provided in a residential setting. Medicare does not cover custodial care to assist with daily living tasks and needs if no skilled services are necessary.

Medicaid may cover nursing home custodial care if income and asset requirements are met, but would-be residents cannot usually transfer their assets simply in order to qualify for this assistance immediately. Other financing options such as state programs and reverse mortgages may be available. If a child or other relative pays for nursing home care, that person may be able to deduct the expenses on his or her taxes.

Once a person moves to a nursing home, he or she may have concerns about the level of care and the maintenance of his or her personal rights. Relatives may worry about whether their elderly family member will be comfortable and stable in the new setting.

Violations of a nursing home resident's rights are a form of elder abuse, which all states prohibit. Definitions of elder abuse most commonly include physical, psychological, and financial abuse, as well as neglect. Many states have adult protective services agencies that enforce compliance with their elder abuse laws. Violators of elder abuse laws generally are subject to criminal and financial penalties.

Once a resident has settled in, he or she cannot be moved legally without proper consent unless the resident endangers the safety or health of other residents, develops medical needs that can no longer be met by the home, recovers to the point that residential care is no longer necessary, fails to pay for services, or must leave because the facility is closing.

Your loved ones deserve the best elder care available. Contact us today – we’re here to protect your family. Let our Michigan attorneys help you understand elder law and Medicaid eligibility.

Alzheimer Care, Parkinson’s Care and Assisted Living Facilities.

When your loved ones need Parkinson’s and/or Alzheimer care, it can be one of the most difficult jobs in the world. Not only are you continuously meeting their daily needs, but you’re also realizing that your relationship has changed forever because of the disease.

The Alzheimer care and Parkinson’s care balancing act becomes even harder when you try to factor in time for yourself and other family members. Unfortunately, there are too many Parkinson’s and Alzheimer care guides containing very technical and clinical disease information.

What you really need is practical information and useful suggestions about dealing with the disease to make everyday tasks easier. Daily Alzheimer and Parkinson’s care issues can lead to caregiver burnout. It’s this burnout that sometimes leads to placing your loved ones in Michigan assisted living facilities.

Medicaid Planning and Asset Protection

Medicaid planning is an important aspect of estate planning for the elderly. Proper planning assures that the elderly fully realize their Medicaid benefits, without their estate having to reimburse the government for such benefits.

At the O’Bryan Law Firm, we assist clients in Michigan to make the right estate planning moves as they age. Medicaid planning should not be overlooked.

On some occasions, we make house calls, including visiting our clients at nursing homes, or other care facilities. Sean O’Bryan is also available to hold seminars at nursing homes or other care facilities on topics that include Medicare planning and asset protection.

What You Can and Cannot Keep to Qualify for Medicaid

In order to understand Medicaid qualifications, you first need to know how Medicaid treats your assets. Basically, Medicaid breaks your assets down into two separate categories: assets that are exempt and those that are non-exempt or countable.

Generally the following assets are exempt:

• The home, no matter its value. The home must be the principal place of residence. The nursing home resident may be required to show some "intent to return home," even if this never actually takes place.
• Household and personal belongings, such as furniture, appliances, jewelry and clothing.
• One vehicle (there may be some limitation on value)
• Prepaid funeral plans and burial plots.
• Cash value of life insurance policies, as long as the face value of all policies added together does not exceed $1,500. If it does exceed $1,500 in total face amount, then the cash value in these policies is countable. Also, term life insurance is exempt.
• Cash (e.g. a small checking or savings account) not to exceed a limit of $2,000 in Michigan.

These are assets that Medicaid will ignore--at least for now. Keep in mind, however, that Medicaid can come back to recover payments made to a Medicaid recipient after the death of the recipient.

Non-exempt assets include: checking accounts, savings accounts, certificates of deposit, money market accounts, stocks, mutual funds, bonds, IRAs, pensions, second cars, and so on. While there are some minor exceptions to these rules, for the most part, all money and property, as well as any item that can be valued and turned into cash, is a countable asset, unless it is one of those listed earlier as exempt.

While the Medicaid rules themselves are complicated and somewhat tricky, for a single person it's safe to say that you will qualify for Medicaid so long as you have only exempt assets plus a small amount of cash, (i.e. $2,000).

For a married couple the community spouse (i.e. the one not needing nursing home care) can generally keep fifty (50%) percent of exempt assets and other assets worth no more than $95,100.

Of course, this does not mean there are not things that can be done to protect assets beyond these levels. With advance planning, there are ways that single persons can often protect 50% or even more of their assets and married couples can often protect all of their assets. The use of trusts can be valuable tools in this regard.

Asset Protection

If you have concerns about lawsuits, divorce settlements or other potential creditors, an asset protection plan may be advisable for you. There are a variety of ways that you can protect your assets from such creditors legally. Another consideration is protecting your assets for your beneficiaries upon your death, including preventing the loss of a beneficiary’s inheritance to their creditors, divorce or lawsuits. If you have questions, or would like to know more about how to protect your assets or your beneficiaries' assets, contact us today and one of our experienced attorneys will be happy to assist you.

Medicare, Disability and Social Security Planning

What Does Medicare Cover?

Medicare provides insurance to people who are over 65 years old, people who are disabled, and people with permanent kidney failure. Medicare serves as secondary insurance, to cover hospital care and medical care not covered by other insurance. Medicare has two parts: Hospital Insurance (Part A) and Medical Insurance (Part B).

Medicare Part A provides coverage for inpatient hospital services, skilled nursing facilities, hospice care, and home health services. This insurance helps pay for medical care and services provided by Medicare-certified hospitals, skilled nursing facilities, hospices, and home healthcare agencies.

Coverage for care in hospitals is measured in benefit periods and there is no limit to the number of benefit periods an individual is entitled to under the program. Medicare will help pay for 90 days of inpatient hospital care in each benefit period. Medicare will also contribute to care in a skilled nursing facility and home health care, if the individual meets certain requirements. The only type of nursing home care Medicare pays for is skilled nursing facility for rehabilitation, usually after a hospital stay.

Medicare Part B helps pay for the cost of physician services, outpatient hospital services (including emergency room visits), ambulance transportation, diagnostic tests, laboratory services, some preventative care, outpatient therapy services, some medical equipment and supplies, and other health services. Medicare Part B pays 80 percent of approved charges for most covered services. Medicare does not pay for routine physical examinations, dental care, cosmetic surgery, hearing aids, eye examinations, or eyeglasses.

The recently enacted Medicare Prescription Drug Improvement and Modernization Act of 2003 authorizes the implementation of the Medicare-Approved Drug Discount Card Program. This program is designed to help people with Medicare with the cost of prescription drugs. Individuals have been able to enroll in a Medicare-approved prescription drug discount program since the spring of 2004.

A key part of the Medicare-approved prescription drug discount card program is a subsidy of up to $600 a year for eligible lower-income beneficiaries. Individuals whose income is less than $12,124 each year or married couples whose income is less than $16,363 may qualify for this special help.

In addition, supplemental insurance, Medigap, is available to help to pay out of pocket expenses not covered under Part A and B. There are 10 standard Medigap policies, and each offers a different combination of benefits designed to fit the individual's needs.

There are six basic Medicare options; however, the availability of these plans depends on your locality. Only Original Medicare is available across the United States. There are several questions you should address when choosing a plan:

• Do you need to see specialists?
• Do you travel and need healthcare away from home?
• How big is your budget?
• Are you eligible for Medicaid?
• Do you have healthcare coverage from a former employer?
• Do you need prescription drug coverage?

An elder law attorney can help answer your question about Medicare coverage, and fit it into an overall estate planning structure that makes the most sense for you and your family.

Disability Planning

In planning for a person with disabilities, care must be taken to ensure that any gifts that a family member or close friend may want to give such person do not operate to prevent the person from getting or continuing to get any special benefits that he or she is currently receiving.

Many persons with disabilities receive financial assistance from the government. Social Security, Supplemental Security Income (SSI) and Medicaid offer funds to help pay for care and living expenses for many persons with disabilities. Any assistance provided is on a “as-needed” basis, specifically, if an individual receives money from another source, their government benefits may be reduced to compensate for the other money received.

When giving a gift to a person with a disability, it is important to ensure that such gift will not jeopardize their eligibility for much needed benefits.

Supplemental Needs Trusts are specifically engineered to avoid this by providing trust funds to pay for only items that supplement the lifestyle of the person with the disability, rather than provide support. If you are interested in a Supplemental Needs Trust for an individual that you care about, here are some things to consider:

• What is your main goal in protecting your estate?
• What is the average cost of the loved one’s needs above and beyond what their current benefits will pay for?
• How much support must you give to other members of your family?
• Who would you name as Trustee?
• What limits would you place on your Trustee’s power, if any?
• How would you like funds to be withdrawn from the Trust?
• How would you fund the trust?

The government allows these types of trusts because of the public policy considerations behind them, but primarily because Medicaid benefits often do not cover all of the needs of a disabled person. Assets can be placed in a disability trust to supplement a disabled person’s benefits, however, the trust assets remaining at a beneficiary’s death must first be used to repay any benefits paid by the state of Michigan through Medicaid to the person with a disability. Once this is repaid, the remaining amounts may be distributed to the disabled person’s family.

Legal Question about Your Social Security Benefits?

We also help people collect the disability and retirement benefits under Social Security. If you suspect a social security claim has been denied unfairly, we can represent you to get the disability or retirement benefits you rightfully deserve.

Medicare and Social Security benefits should always be considered in estate planning. Any disabilities of a beneficiary must also be taken into account. At the O’Bryan Law Firm, we have the experience and knowledge to give you sound advice on how to fit Social Security and/or Medicare payments into your estate plan.

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If you are looking for sound advice on elder law issues, please contact us. We offer complimentary initial consultations, and a published, straightforward, and competitive schedule of fees.