ENSIGN LAW FIRM NEWSLETTER

 January 2008

2007 has flown behind us and, ready or not, 2008 is here.  What does the New Year hold for you and your loved ones?  We hope it will be a great year, one you will look back on with fond memories.

This newsletter will update you with some developments affecting Elder Law and Life Care Planning.  If you find this information helpful, please feel free to copy and share this newsletter.

Special Seminar for Professional and Family Caregivers

A week into the New Year, the Ensign Law Firm, P.C. will be presenting an educational seminar entitled Planning Together for Elder Care: Nursing Home Admission, Care and Medicaid Qualification.  This special seminar is designed to provide important information for geriatric caregivers including nursing home administrators, business managers, social workers, licensed staff as well as elders and their families and the general public.  The Amarillo College Center for Continuing Healthcare Education is facilitating this presentation and will be providing Continuing Education units in healthcare for professionals. 

On Tuesday, January 8th, this seminar will begin with a free lunch from 12 noon until 1 p.m. at the Amarillo College West Campus Lecture Hall, 6222 W. 9^th.  Beginning at 1:00 pm our staff, plus a guest speaker, will be discussing how we can all team together in planning for the long-term care of elders.  Specific issues to be addressed will focus on  

·             Why are we here and how did we get here?

·             Medicare and Medicaid, benefits and requirements

·             Empowering family members to provide care

·             Preparing for admission to a long-term care facility

·             Management of admission issues

·             Management of Elder care and

·             Qualifying for Medicaid including documentation and the application. 

An extended question and answer period will close the seminar to assure the audience’s concerns and issues that have arisen in the individual presentations have been fully addressed.

Our guest speaker will be Lisha Ralston, Business Manager at The Arbors nursing home in Amarillo.  She will be discussing some of the issues above from the perspective of the management of long-term care facilities.  She brings a wealth of experience, wisdom and her heartfelt desire to help elders in these difficult times to this seminar. 

We urge you to make reservations for this special opportunity to learn more about this increasingly important field, whether you are involved with providing elder care as a professional or as a family member.  The cost is only $25 to cover the cost of the meal and the materials.  Please register in advance by calling Kim Crowley at Amarillo College at 354-6087.  And if you have any questions, please call our office at 373-7705 and talk with Bonnie or Trina.  We hope to see you. 

New Medicaid Numbers for 2008

At the beginning of each year the U.S. Government’s Center for Medicare & Medicaid Services updates the eligibility amounts.  Here are some of those expected for Texas beginning on January 1. 

On the income side of qualification, the maximum “countable” income - the cap - for Medicaid qualification by an individual will increase from $1,737 per month to $1,911.  In some circumstances, some or all of the institutionalized spouse’s income may be paid to the spouse who is not institutionalized, the “community spouse.”  This minimum monthly maintenance needs allowance has increased to $2,610.00 per month.

On the resources side of qualification, some of the resources of the community spouse can be protected for the benefit of that spouse.  This is called the protected resource allowance (PRA).  The maximum PRA in Texas has increased to $104,400.  In some restricted cases, the PRA may be increased (expanded) above this maximum amount if the non-countable resource income of both spouses was below the minimum monthly maintenance needs allowance above.  The minimum protected resource amount rises to $20,880. 

The gift penalty remains at one day of penalty for each $122.50 that was gifted.  And this penalty only begins when the applicant for Medicaid is otherwise qualified.  This means she has medical necessity, is in a Medicaid licensed facility and in a Medicaid bed, has less than $1911 of income per month and has less than $2,000 in countable resources. 

Review of 2008 Legislative Activity Helping Elders

State Court Judicial Review of Medicaid Denial

The Texas Chapter of the National Academy of Elder Law was instrumental in the passage of this vital legislation.  Beginning September 1st, Texans denied food stamps or Medicaid benefits have the same right that residents of every other state already had:  They can appeal to a Texas district court when denied benefits.  This is a major victory for the elderly poor who might qualify for Medicaid but for the decisions of the Health and Human Services Commission caseworker. 

An independent Texas district court judge will review the records and all information already supplied to HHSC without requiring a court hearing for witness testimony.  This should speed up the appeal process.  And a speedy decision is needed in these cases because an elder is waiting to see if Medicaid is going to pay for their care in the nursing home. 

My good friend, Gaye Thompson, President of the Texas Chapter of the National Academy of Elder Law Attorneys, says the people affected by adverse decisions regarding benefits do not have money to hire lawyers and are dependent on lawyers who are willing to work pro bono but aren’t likely to take such a case to federal court because most attorneys don’t practice in federal court and it is much more complicated, much more exacting, more expensive.

As the Web Site Chairman of the Texas Chapter of NAELA, I was able to assist the efforts toward the passage of this vital legislation.  Gaye Thompson and others got involved in supporting the legislation after they saw various failures in the system and spent much time without compensation to help the elder clients who had been denied essential Medicaid benefits.  

Texas Silver Haired Legislature Initiatives Enacted

The Texas Silver Haired Legislature (TSHL) is a body of volunteers elected by elders in the regions of Texas served by Area Agencies on Aging.  Amarillo and the Panhandle have several valuable volunteers who have been influential in the TSHL.  It meets in the years when the Texas Legislature is not meeting to consider resolutions to be passed and presented to the Legislature for action the next year on behalf of seniors across Texas.  A number of the TSHL resolutions in 2006 were enacted into law in 2007 with their support.  This is a brief description of several of these new laws. 

·             Personal needs allowance of $60 per month for Medicaid recipients made permanent.

·             Several new laws limit tax increases or provide caps on property owned by seniors.

·             “Silver Alert” enacted for missing senior citizens - like Amber alerts are for children – so law enforcement agencies, the news media and the general public will be promptly notified when an incompetent elder is missing and will start a search and rescue operation.

·             Home meal delivery to senior citizens encouraged and enhanced.

·             Renewal of senior’s driver license requires a personal appearance ever two years for applicants who are 85 or older.

·             A Medicaid Reform Act enacted to fund Medicaid for the biennium with reform mostly technical without changes that would be noteworthy to the public. 

·             Family councils were authorized in each nursing home facility and the facilities must provide required information and assist in the family council’s operation.

Inheritance Causes Problems for Medicaid Recipient

While most of us perceive that receiving an inheritance is a wonderful thing, when a Medicaid recipient receives one, problems will probably result even to the possibility of disqualification for Medicaid.  As a result, careful planning for the possibility of an inheritance being received while receiving Medicaid is vital.  This also applies to being named as a beneficiary of a life insurance policy.  The receipt of the proceeds of life insurance can have the same effect as an inheritance.

The amount received as an inheritance or from a life insurance policy will be counted as income in the month it is received by the Medicaid agency of the state.  If the amount received puts the Medicaid recipient over the income limits, they will be ineligible for Medicaid for at least a month in which the inheritance was received.  If the money received can be properly and legally spent (such as paying the nursing home for that month’s care but NOT given away to others) - in the same month it was received, the recipient may be eligible in the following month. 

If there is any money left from the inheritance or life insurance proceeds after paying the nursing home, an elder law attorney should be consulted for advice regarding the proper way to spend down the money in order to re-qualify for Medicaid benefits as soon as possible. 

All persons who have elderly relatives or beneficiaries of their life insurance policies should review and consider modifying the beneficiary designations in their trusts, wills and life insurance policies.  This would help to assure the present or future eligibility of the Medicaid recipient will not be affected by their death before the Medicaid recipient.  This would be a good opportunity to review your estate plan.  Please call if we may be of assistance in this process.

Nursing Home Costs Rise and Retirees Spending Is Reduced

The 2006 MetLife Market Survey of Nursing Home and Home Care Costs revealed that the average daily cost of a private room in a nursing home was over $75,000 a year or $206 per day.  This is an increase of almost 4% over the prior year.  As we can expect, these costs will continue to rise year after year with no expectation of a decline in the future.

The fear of being forced to go on Medicaid to pay for the ever-increasing costs of long-term care plays a significant role in explaining why many middle-class retirees have reduced their rate of spending.  According to four economists in their paper “The Joy of Giving or Assisted Living?” (published by the national Bureau of economic research) most of the 1000 respondents to a survey would reduce their bequests to their heirs so they could avoid having their care paid for by Medicaid.  It may be that the researchers’ characterization that Medicaid results in limited choice of facilities that offer inferior care to Medicaid recipients played a substantial role in this finding.

This “Medicaid Aversion” is the key motivation for precautionary savings by retirees which limits their spending.  The researchers also found that the fear of having to rely upon Medicaid was higher for childless retirees than for those with children, probably because they have no one in subsequent generations to look to for assistance with their long-term care. 

Estate Planning and the Probate Process

Although the majority of this letter has dealt with items concerning long-term care and Medicaid qualification, our practice still involves a lot of estate planning for people who do not yet have a decline in their physical well-being or capabilities.  As a result of our substantial involvement with elder care matters, our approach to estate planning incorporates contingency planning for long-term care with a focus on empowering family caregivers to provide loving care when it is needed. 

When the likelihood of eventual Medicaid qualification is low, we may recommend the use of a revocable-living-trust-centered plan to reduce the burden and cost of a guardianship in case of disability and a probate following death.  This approach has served our clients well in both cases through our years of practicing law. 

However, when the need for eventual Medicaid qualification for one or both of the spouses is high, the revocable living trust can result in complications in the Medicaid qualification process.  So a good will is needed in such cases.  And when a person dies with a will, a probate of that will is necessary to validate it and to make it effective for the disposition of the assets of the decedent pursuant to her instructions. 

As we noted above, the receipt of an inheritance by a person qualified for Medicaid can have serious impact upon their eligibility to receive those benefits.  As a result, we often employ a will that sets up a special-needs trust for the benefit of one who is receiving government assistance such as Medicaid.  Properly drafted, such a trust can allow for the supplementing of such assistance without supplanting it thus disqualifying them from receiving that assistance in the future.

The probate process has received a bad name among many in the general public.  Unfortunately, the actions of some attorneys have contributed to this misperception.  Some attorneys keep the wills in their files until the person dies.  Then when the family comes to retrieve the will, they are at a psychological disadvantage if they wish to retain another attorney to probate the will because they perceive that the attorney that prepared the will is the one who has to probate it.  This is simply not true.  Other attorneys may charge fees that the surviving family members perceive to be outrageous for what they perceive to be simple services, often based on a percentage of the assets left at death.  Furthermore, the probate process may be dragged out over an extended time when disgruntled family members make unwarranted claims and contest the will. 

Providing assistance, guidance and legal services to our clients through the necessary probate process is an important part of our practice of Elder Law.  We try to provide the same level of care to the survivors who must go through this process as we do to those elders who are planning for their eventual death and disposition of their property.  We want to help with the implementation of their wishes as expressed in their will with sensitivity to those impacted by the decisions their loved one made before departing. 

My wife, Joy Ensign, serves as my Legal Assistant in probate matters with patience and compassion for the survivors.  She guides them in the process of gathering all the necessary documentation, prepares the legal documents required for the probate hearing, schedules the probate hearing and help to prepare the family members for their role in the hearing.  We appreciate each opportunity to help families to navigate the probate process through some of the most difficult times of their lives.  If we may assist your family, friends or clients with a probate matter, please call on us.

Continuing Education and Speaking

Since our last newsletter there have been a number of educational opportunities impacting our ability to help our clients and more will be coming soon.  I attended the annual two-day Tax Institute presented by the Panhandle Chapter of CPAs in August and the Tax Update course in December to stay in touch with the complexities of the tax laws, though I don’t do many tax returns. 

In June I presented my article The Future of Medicare and Medicaid for Seniors to a day-long seminar entitled Trends and Needs of Senior Adults presented by the Senior Ambassadors Coalition in conjunction with Amarillo College to a varied audience of caregivers.  If you would like to read this presentation, it is posted on our website at http://ensignlaw.com/Looking%20Ahead.html

Joy and I drove to Galveston for the University of Texas Estate Planning, Guardianship and Elder Law Conference.  I had the opportunity to learn and interact with Texas Elder Law colleagues and both of us were able to spend a couple of days exploring Galveston Island, its fascinating history and some attractions while celebrating 36 years of marriage. 

All four of us attended two excellent seminars about caring for those who are suffering from Alzheimer’s disease.  Living with Change: Caring for Someone with Memory Loss was a day-long presentation by Andy Crocker, Gerontology Specialist with the Texas A&M Extension Service.  Jacqueline Marcell, the nationally known author of Elder Rage, was hosted by the Area Agency on Aging and the Alzheimer’s Association.  Her website is http://www.elderrage.com where her book and other educational resources may be purchased.  Both seminars enhanced our understanding of Alzheimer’s disease and increased our ability to appropriately counsel with and help families whose loved ones are suffering with this terrible, debilitating disease.

The Senior Fall Festival at the Civic Center in October, sponsored by the Senior Ambassadors Coalition, was a huge success with almost twice as many people attending this year as last.  We hope you will look for announcements about this Fall’s Festival and mark you calendar to attend.  It will be a great opportunity to learn about many of the services available to elders from care providers in this community and to have some basic health testing like blood pressure, cholesterol, basis blood tests, etc.  Please watch our webpage at http://ensignlaw.com for more information.  

Bonnie McMillan, RN, our Geriatric Care Manager, Joy Ensign, my Legal Assistant and our Firm Administrator, and Trina Froschheiser, our Public Benefits Coordinator, are planning to attend the first UnProgram for staff members of the Life Care Planning Law Firms Association in Dallas this month.  This UnProgram will facilitate learning from and sharing ideas with other Geriatric Care Managers, Public Benefits Coordinators, and Firm Administrators from firms that practice Elder Law in the Life Care Planning model as we do.  At the same time, I’ll be attending the National Academy of Elder Law Attorneys UnProgram for attorneys being held a few miles away to exchange ideas and developments about Elder Law with attorney from across the nation. 

We are pleased to have had a role in the formation of the Life Care Planning Law Firm Association in 2007 as a founding director.  The LCPLFA has grown already to about 50 law firm members and interest is building as law firms begin to see the importance of assisting clients with the issues of planning for life and caring beyond routine estate planning and Medicaid qualification.  

The entire team of the Ensign Law Firm, P.C. wishes you and your loved ones a Happy, Prosperous and Joyous New Year filled with many opportunities to give of yourself to others, beginning at home with family, and to receive the untold blessings that will result.  Before we know it, Spring will be here, renewing and revitalizing our beautiful country.  We hope this will be a time of renewal and revitalizing of your life and all that is precious to you. 

P.S.  If you are a member of a group that would like a presentation about Estate Planning, Elder Law or Elder Care, please call me or ask your Program Chairman to call to discuss the opportunity.