The Difference Between Home Health and Home Care
The Difference Between Home Health and Home Care

The Difference Between Home Health and Home Care

Many people use the terms “home care” and “home health” interchangeably, which can cause confusion when you try to find funding for these services. This article will try to help you understand the difference between home care and home health.

What is Home Care?

Home care goes by a variety of names, including “aging in place,” “caregiving,” “in-home assistance,” “personal care” and “companion care.” The services do not include medical treatments. The people who provide these services are home care aides or caregivers. Because the services are non-medical, the worker category is “non-clinical” or “unskilled.”

Home care can include such things as preparing meals, assisting the older adult when eating, reminding him to take his medication and helping him to bathe, groom and dress. Depending on the needs of the person receiving the care, the tasks can include house cleaning, transportation and help with paying bills. The services usually get tailored to the individual client.

The total package of home care can involve multiple parties. For example, the older adult might have a home care aide who comes to the house for two or three hours every morning. The aide might help the client get ready for the day, with taking a bath, getting dressed and performing the morning grooming tasks. The aide might get the client’s breakfast ready, remind him to take his pills and make a sandwich for his lunch. Another person might come in once a week to clean the house, do laundry and batch cook some meals.

The client might use a grocery or meal delivery service. He could have a money manager make sure that his bills get paid.

Medicaid can pay for some of these services, if the senior qualifies for Medicaid. Some long-term care insurance policies can help with some of the cost. The remainder of the expenses is private pay.

Home Health Care

Skilled medical professionals provide home health care. These services usually take place after the doctor discharges the patient from the hospital, but she still needs some medical treatment, like physical therapy or care for a surgical incision. Depending on the treatment plan the doctor prescribes, the client might also receive health status monitoring, medical tests and the administration of drugs, including injections.

The medical professionals who provide home health care services include physical therapists, registered nurses, occupational therapists and other skilled healthcare workers. Sometimes the services last for a matter of weeks, until the doctor releases the patient. However, for some individuals with chronic conditions, the patient might need ongoing in-home medical treatments. The services might include teaching the patient skills to regain and maintain better health and function independently.

When a doctor prescribes home health care, Medicare will sometimes pay the expense of the services. If the client meets the low-income and other qualifications, Medicaid can bear the cost.

Overlap of Home Care and Home Health

When an older adult needs medical treatment in the home, he often also needs help with personal services. If a family member is unavailable to assist him, he might need to obtain the care from an agency. The fact many people need both types of services, home care and home health, contributes to the confusion.

References:

A Place for Mom. (accessed August 7, 2019) https://www.aplaceformom.com/planning-and-advice/articles/home-health-vs-home-care

 

What Should I Know About a Special Needs Trust?
What Should I Know About a Special Needs Trust?

What Should I Know About a Special Needs Trust?

What Should I Know About a Special Needs Trust?

Your disabled family member may be eligible for a number of government programs. However, Pauls Valley (OK) Democrat’s recent article asks “Can your family benefit from a special needs trust?” The article reminds us that these programs don’t cover everything. You may need to close the gaps.

A few government programs have eligibility restrictions, based on the level of financial assets that are available to the recipient. This means the financial help you’re wanting to provide may do more harm than good, unless you establish a special needs trust.

As the donor, you supply the funds. A trustee holds and administers them, according to your instructions. The beneficiary typically can’t use the trust for basic support or to receive benefits that can be provided by the government. The special needs trust can be used to provide specialized therapy, special equipment, recreational outings and other expenses.

When considering a special needs trust, What Should I Know About a Special Needs Trust? You’ll need to look at several issues with your attorney. However, there are two that are critical. The first is designating a trustee. You could name a family member or close friend as a trustee. While this works well for many, it has the potential to cause family conflicts. You could also name a trust company. This company can provide professional management, expertise and continuity of administration. A third option is to name an individual and a trust company as trustees.

The second critical issue with a special needs trust is funding the trust. You can fund the trust during your lifetime or have it activated when you die.

Note that you don’t have to be the sole donor. A special needs trust can be created so other family members can also contribute to it. The trust can be funded with securities (stocks and bonds), IRA proceeds, insurance death benefits and other assets.

You’ll need to understand the requirements of various federal, state and local benefit programs for people with disabilities, so that your loved one’s benefits are not at risk.

What Should I Know About a Special Needs Trust? Speak with an experienced elder law or estate planning attorney about how you can to make life better for a disabled child or family member with a special needs trust.

Reference: Pauls Valley (OK) Democrat (August 1, 2019) “Can your family benefit from a special needs trust?”

 

Dementia and Advanced Directive
Dementia and Advanced Directive

Dementia and Advanced Directive

Dementia and Advanced Directive.

The Roanoke Times advises in the recent article “What to do in absence of advance directive” to talk to an experienced elder care attorney to coordinate the necessary legal issues, when dementia may be at issue with a parent or other loved one. Next, ask your physician for a geriatric evaluation consultation for your loved one with a board-certified geriatrician and a referral to a social worker to assist in navigating the medical system.

It’s wise for anyone older than 55 to have advance directives in place, should they become incapacitated, so a trusted agent can fulfill the patient’s wishes in a dignified manner. Think ahead and plan ahead.

As a family’s planning starts, the issue of competence must be defined. A diagnosis of Alzheimer’s disease doesn’t necessarily indicate incompetence or a lack of capacity. At this point, a patient still has the right to make a decision—despite family members disagreeing with it. A patient’s competency should be evaluated after a number of poor choices or an especially serious choice that puts a patient or others at risk.

An evaluation will determine the patient’s factual understanding of concepts, decision-making and cogent expression of choices, the possible consequences of their choices and reasoning of the decision’s pros and cons. Healthcare professionals make the final determination, and these results are provided to the court.

If a patient passes the evaluation, she is deemed to have the mental capacity to make choices on her own. If she cannot demonstrate competency, an attorney can petition the court for a competency hearing, after which a trustee may be appointed to oversee her affairs.

The time to address these types of issues is before the patient becomes incapacitated. The family should clearly define and explore the topics of living wills, health care proxies, estate planning and powers of attorney now with an experienced elder law attorney.

Taking these proactive actions can be one of the greatest gifts a person can bestow upon herself and her loved ones. It can give a family peace of mind. If you put an advance directive in place, it can provide that gift when it’s needed the most.

Reference: Roanoke Times (June 17, 2019) “What to do in absence of advance directive”

 

You Need a Power of Attorney in Your Estate Plan
You Need a Power of Attorney in Your Estate Plan

You Need a Power of Attorney in Your Estate Plan

You Need a Power of Attorney in Your Estate Plan.

A power of attorney is an important legal document that allows a person, known as the principal, to designate a person of their choice to become their agent, acting on their behalf. This is usually done when the principal is unable to manage their financial affairs due to disability, illness or incapacity. It must be done while the principal is still competent, notes Delco Times in the article “What’s the difference between guardianship and power of attorney?” There are also instances when power of attorney is used when the principal is unable to conduct their own affairs, because they are traveling or are deployed overseas.

Related documents are the health care power of attorney and the durable power of attorney. A durable financial power of attorney is a document where the principal designates the powers that the agent may exercise over their finances. The powers granted by this document can be used by the agent, regardless of the principal’s capacity or disability.

The principal has the option to grant very broad authority to their agent. For instance, the principal could give their agent the authority to gift all their assets, while they are still living. That’s why it is very important for the specific provisions in the power of attorney to be carefully reviewed and tailored to the principal’s wishes. There are risks in naming an agent, since they are able to exercise complete control over the principal’s assets. The agent must be 100% trustworthy.

A health care power of attorney allows an agent to make decisions about the principal’s health. Note that this document is operative only when a copy is provided to the attending physician, and the physician determines that the principal is incompetent.

Both health care power of attorney and financial power of attorney may be revoked by the principal at any time and for any reason.

If the principal has not had these documents prepared in advance and then becomes incompetent by reason of injury, illness, or mental health issues, they may not have the legal right to sign the power of attorney. When this happens, it is necessary for a guardianship proceeding to occur, so that other people may be named to take charge of the person’s financial and health affairs. Advance planning is always preferred.

If an individual is born with a disability that impacts their capacity and upon attaining legal age, does not have the capacity to sign a power of attorney, then a guardianship proceeding will be necessary. The court must determine if the person is truly incapacitated and if there might be an alternative to appointing a guardian. Once the guardian is appointed, the principal no longer has the legal right to make decisions on their own behalf.

A guardianship is a much more restrictive tool than a power of attorney. For one thing, the power of attorney generally does not need the involvement of the court. There is always the possibility that a guardian is appointed who does not know the family or the individual. A durable power of attorney allows a person to appoint someone they know and trust to help them and their family, if and when they become incapacitated.

Speak with your estate planning attorney about how power of attorney works, and when guardianship issues might arise. Being prepared in advance by having the right documents in place, is always better than having the family going to court and hoping that the right decisions are made.

Reference: Delco Times (May 8, 2019) “What’s the difference between guardianship and power of attorney?”

 

Hospice Care Information
Hospice Care Information.

Hospice Care Information

Hospice Care Information.

Like hospice, palliative care is designed to relieve suffering and empower patients. However, palliative care can be used by any patient with a serious illness—it doesn’t require a terminal prognosis to qualify.

Hospice does require a terminal prognosis and is a more intensive service for when an illness has advanced.

AARP’s recent article, “How to Find a Quality Hospice,” explains that hospice care in America is most commonly provided in the patient’s home—or in a long-term care facility where the patient already lives. The hospice team will visit frequently.

“The ultimate goal for hospice care is to take in the patient and family, hold their hand and provide all the care they need,” says Jennifer Kennedy, senior director, regulatory and quality, for the National Hospice and Palliative Care Organization. That includes leaving the family with a belief that they did right for their loved one. “We only have one shot to get it right,” she says.

Hospice and palliative care experts recommend, if possible, interviewing several prospective hospices to weigh the type and quality of their services. When you’ve identified several promising hospices and called to request an informational interview, bring a list of questions to help you determine the type and quality of care your loved one will receive there.

Hospice Care Information. The way in which the hospice responds to the initial inquiry will be important. If they don’t make the patient and family feel nurtured and listened to from the very first call for help, look elsewhere.  Don’t feel guilty about beginning your search as early as possible, so you don’t make a decision in a crisis. Here are some questions to ask a hospice:

  • Does the medical director make home visits to address complex symptoms?
  • How does the hospice respond to patient crises after hours?
  • Does the hospice provide all of the levels of care required by the Medicare hospice benefit?
  • Is the facility accredited by one of the national organizations that survey hospices on their quality?
  • Is the staff individually certified as experts in their field by their recognized professional bodies?
  • Do they have a volunteer program and what does it include?

Reference: AARP (June 27, 2019) “How to Find a Quality Hospice”

 

Predatory Marriage: What Can Be Done?

Predatory Marriage and What Can Be Done about It?

“A bad marriage is worse than no marriage at all.” Neil Clark Warren

“A sociopath, on the other hand, has the same regard for financial obligations as he does to personal ones: no remorse, no conscience. Get what you want now, and damn the consequences later.”  Mary Jo Buttafuoco, Getting It Through My Thick Skull: Why I Stayed, What I Learned, and What Millions of People Involved with Sociopaths Need to Know

Here’s a recent case that best illustrates a predatory marriage: a 47-year-old caregiver is riding in a car to the funeral home with the sons of the man she has been taking care of, until he died at age 100. She announces that she and the man were married in secret a year ago. This is another kind of elder financial abuse, says the New York Law Journal in the article “Predatory Marriages and the Elderly: A Legislative Solution” and is increasing in number.

This is not an easy case to deal with, because of a defect in the law. In New York, there is a “right of election” statute that permits a surviving spouse to claim a share in the estate of a deceased spouse, even if he or she was left nothing, as long as they were married on the date of the decedent’s death. Originally meant to shield a surviving spouse from being left nothing, this law is now being used by unscrupulous people to take financial advantage of the elderly.

Dishonest individuals marry mentally incapacitated seniors and then claim their right of election share.

These sham marriages can still result in the person receiving a share of the estate because there’s a flaw in this law. The elective share can only be barred, if there was a judgment declaring that the marriage was annulled in effect at the time of death of the spouse. If the predatory marriage is detected before death and a court order voids the marriage, only then can the elective share be denied. If the judgment of nullification is made after death, the surviving spouse can make a claim.

Like most scams, the person pursuing the predatory marriage will work hard to ensure that no one learns about the marriage, until after the person dies.

In contrast, there is a Mental Hygiene Law in New York State that authorizes the court to revoke any previously executed contract, if the court finds that the contract was made while the person was incapacitated. Marriage is treated as a contract under Mental Hygiene Law and a judgment declaring a marriage void can be issued even after death.

In the case of the 47-year-old woman who hoodwinked the elderly man, the family fought back in court and her claim was denied. Based on the evidence, the court found that she knew the man was mentally incapacitated and entered into the marriage to obtain monetary benefits.

A bill has been introduced in the New York Assembly and Senate that would amend the law to allow the courts to declare a judgment of annulment before or after the death of the spouse, thereby voiding the marriage and disqualifying the surviving spouse from claiming the elective share.

The best prevention of elder financial abuse is to have the family involved in preparing the needed legal documents, before a predator can act. That includes power of attorney for financial matters, a will, and trusts to safeguard assets. Talk with an estate planning attorney today to learn how to protect your family against predatory marriages or asset protection generally. 

Reference: New York Law Journal (May 16, 2019) “Predatory Marriages and the Elderly: A Legislative Solution”

Stan Lee Victim of Elder Abuse
Picture of Stan Lee as a cartoon, he is creator and writer of Spiderman and is smiling is smiling

Stan Lee Victim of Elder Abuse

Legendary writer Stan Lee was the victim of elder abuse.

“…with great power there must also come — great responsibility!” Stan Lee

“Don’t make me angry. You wouldn’t like me when I’m angry.” David Bruce Banner

“Excelsior!”

District Attorney of Los Angeles County Jackie Lacey has leveled elder abuse charges against Stan Lee’s former business manager, Keya Morgan.

MSN’s recent article, “Stan Lee’s Ex-Manager Hit With Elder Abuse Charges; Arrest Warrant Issued” reports that Morgan is facing one felony count of false imprisonment of an elder adult, three felony counts of theft, embezzlement, and forgery or fraud against an elder adult, as well as the initial elder abuse misdemeanor count.

Morgan took control of Lee’s business affairs and personal life in February 2018. Lee, the creator of Spiderman, the Black Panther, and other comic book heroes, had assets of more than $50 million in the last years of his life. Lee passed away on November 12, 2018. Morgan is said to have isolated his client from family and friends. Morgan also embezzled or misappropriated $5 million of assets, according to documents filed in Los Angeles Superior Court in 2018.

The five counts of elder abuse filed on May 10 could put Morgan in prison for 10 years, if he’s found guilty.

The public first learned of the troublesome relationship between Morgan and Lee last summer, when the then 95-year old Marvel comic book legend sought a restraining order against his ex-aide over elder abuse. The request was made just three days after Lee put out a June 10, 2018 video on social media insisting that he and Morgan were working “together and are conquering the world side-by-side.”

Because of the video and the elder abuse filing, Lee’s financial advisor was arrested by the Los Angeles Police Department on suspicion of filing a false police report, allegedly concerning a supposed break-in incident at Lee’s residence.

A three-year restraining order against Morgan was granted by a county judge last August. He was found guilty of the false police report misdemeanor charge in April 2019 and was ordered to stay away from Lee’s family and residence among other conditions.

After years of making cameos in all the Marvel blockbuster movies, Lee’s last appearance was in the record smashing Avengers: Endgame, which was released last month.

Reference: MSN (May 15, 2019) “Stan Lee’s Ex-Manager Hit With Elder Abuse Charges; Arrest Warrant Issued”

World Elder Abuse Awareness Day was launched on June 15, 2006, by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations.

New York in 1995, through state legislation established the Elderly Abuse Education and Outreach Program to provide education and outreach to the general public, including elderly persons and their families and caregivers, in order to identify and prevent elder abuse, neglect, and exploitation.

Creating an Estate Plan for a Child with Special Needs
Creating an Estate Plan for a Child with Special Needs walking with their special needs child between them

Creating an Estate Plan for a Child with Special Needs

Creating an Estate Plan for a Child with Special Needs

“As special needs parents we don’t have the power to make life “fair,” but we do have the power to make life joyful.” Anonymous

“All kids need is a little help, a little hope, and someone who believes in them” Magic Johnson

Parents want their children to be taken care of after they die. But children with special needs have increased financial and care needs, so ensuring their long-term welfare can be tricky. Proper planning by parents is necessary to benefit the child with a disability, including an adult child, as well as assist any siblings who may be left with the caretaking responsibility.

Special Needs Trusts

The best and most comprehensive option to protect a loved one is to set up a special needs trust (also called a supplemental needs trust). These trusts allow beneficiaries to receive inheritances, gifts, lawsuit settlements, or other funds and yet not lose their eligibility for certain government programs, such as Medicaid and Supplemental Security Income (SSI). The trusts are drafted so that the funds will not be considered to belong to the beneficiaries in determining their eligibility for public benefits.

There are three main types of special needs trusts:

A first-party trust is designed to hold a beneficiary’s own assets. While the beneficiary is living, the funds in the trust are used for the beneficiary’s benefit, and when the beneficiary dies, any assets remaining in the trust are used to reimburse the government for the cost of medical care. These trusts are especially useful for beneficiaries who are receiving Medicaid, SSI or other needs-based benefits and come into large amounts of money, because the trust allows the beneficiaries to retain their benefits while still being able to use their own funds when necessary.

The third-party special needs trust is most often used by parents and other family members to assist a person with special needs. These trusts can hold any kind of asset imaginable belonging to the family member or other individual, including a house, stocks and bonds, and other types of investments. The third-party trust functions like a first-party special needs trust in that the assets held in the trust do not affect a beneficiary’s access to benefits and the funds can be used to pay for the beneficiary’s supplemental needs beyond those covered by government benefits. The key distinction is that a third-party special needs trust does not contain the “payback” provision found in first-party trusts. This means that when the beneficiary with special needs dies, any funds remaining in the trust can pass to other family members, or to charity, without having to be used to reimburse the government.

A pooled trust is an alternative to the first-party special needs trust.  Essentially, a charity sets up these trusts that allow beneficiaries to pool their resources with those of other trust beneficiaries for investment purposes, while still maintaining separate accounts for each beneficiary’s needs. When the beneficiary dies, the funds remaining in the account reimburse the government for care, but a portion also goes towards the non-profit organization responsible for managing the trust.

Life Insurance

Not everyone has a large chunk of money that can be left to a special needs trust, so life insurance can be an essential tool. If a special needs trust has been created, a life insurance policy can pay directly into it, and it does not have to go through probate or be subject to estate tax. Be sure to review the beneficiary designation to make sure it names the trust, not the child. You should make sure you have enough insurance to pay for your child’s care long after you are gone. Without proper funding, the burden of care may fall on siblings or other family members. Using a life insurance policy will also guarantee future funding for the trust while keeping the parents estate intact for other family members. When looking for life insurance, consider a second-to-die policy. This type of policy only pays out after the second parent dies, and it has the benefit of lower premiums than regular life insurance policies.

ABLE Account

An Achieving a Better Life Experience (ABLE) account allows people with disabilities who became disabled before they turned 26 to set aside up to $15,000 a year in tax-free savings accounts without affecting their eligibility for government benefits. This money can come from the individual with the disability or anyone else who may wish to give him money.

Created by Congress in 2014 and modeled on 529 savings plans for higher education, these accounts can be used to pay for qualifying expenses of the account beneficiary, such as the costs of treating the disability or for education, housing and health care, among other things. ABLE account programs have been rolling out on a state-by-state basis, but even if your state does not yet have its own program, many state programs allow out-of-state beneficiaries to open accounts. (For a directory of state programs, click here.)

Although it may be easy to set up an ABLE account, there are many hidden pitfalls associated with spending the funds in the accounts, both for the beneficiary and for her family members. In addition, ABLE accounts cannot hold more than $100,000 without jeopardizing government benefits like Medicaid and SSI. If there are funds remaining in an ABLE account upon the death of the account beneficiary, they must be first used to reimburse the government for Medicaid benefits received by the beneficiary, and then the remaining funds will have to pass through probate in order to be transferred to the beneficiary's heirs.

Get Help With Your desire to Create an Estate Plan for a Child with Special Needs.

Creating an Estate Plan for a Child with Special Needs takes forethought, patience and a willingness to include caregivers in your plan.  you decide to provide for a child with special needs, proper planning is essential. Talk to your attorney to determine the best plan for your family.

 

What a Durable Power of Attorney Can Do
What a Durable Power of Attorney Can Do

What a Durable Power of Attorney Can Do

What a Durable Power of Attorney Can Do

“Make sure you visualize what you really want, not what someone else wants for you.”  Jerry Gillies

“No one is useless in this world who lightens the burdens of another.” Charles Dickens

Helping aging parents with daily tasks can become a challenge, if the parent has limited mobility. A trip to the bank, for example, will require coordinating the adult child’s responsibilities with the aging parent’s limitations. If the parent has more energy in the morning, for instance, but the adult child is working, this can become a bigger challenge than if the adult child can go to the bank on behalf of the parent, when it’s convenient for them — at a lunch break, for instance.

In this situation, as noted in The Daily Sentinel’s article “Tools to help your aging parent,” having a durable power of attorney will help. This type of power of attorney is a legal document that permits a child or other named individual to handle certain responsibilities, like banking. Granting a power of attorney to a child doesn’t mean giving up total control, which is often a concern of aging parents. It simply means that the child is now legally allowed to handle these tasks.

What a Durable Power of Attorney Can Do? A durable power of attorney is different than the “general medical power of attorney.” As implied by its name, this is limited to making decisions about the parent’s health care and is usually used only when the parent is not able to make these decisions on their own.

There are more serious situations, where neither of these types of power of attorney is enough, such as when the parent lacks capacity because of dementia or a medical decision. It is necessary to protect the parent from themselves or anyone who might try to take advantage of their lack of clear mental capacity. This may require that an adult child needs to be appointed as a guardian for their parent.

Being appointed a guardian can be a very emotional event, since the parent and child are not just switching emotional roles, but legal roles. The parent no longer has the capacity to make significant decisions, because a court has found that they no longer have that ability.

You may have heard the term “conservatorship” used. It is similar to guardianship, except that the conservatorship only allows for control over the parent’s financial affairs.

Guardianship is taken very seriously, as it should be. This removes an adult’s right to make any kind of decision on their own. In some states, including Colorado, the court must first be convinced that the parent is unable to effectively receive or evaluate information or to make or communicate decisions. They must be deemed incapacitated, before guardianship can be established. Once that standard has been met, then guardianship is established. If there is a doubt about incapacity, then no guardianship will be established, and the family is faced with finding other ways to help the aging parent.

What a Durable Power of Attorney Can Do is allow parents and their children to face many issues that are best addressed before incapacity becomes an issue. If the family does not have a plan for the aging parent’s care, it is recommended that the family make an appointment with an estate planning attorney to discuss the various options.

Reference: The Daily Sentinel (March 24, 2019) “Tools to help your aging parent”