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Gainesville Florida Estate Planning & Elder Law Blog

Wednesday, August 12, 2015

Twenty Common Nursing Home Problems and How to Fix Them: Here are the First Ten

When it comes to relevant laws that pertain to nursing home residents, the amount of knowledge the average person knows is very little. Unfortunately, Nursing Home Reform Law violations are all too common. The results could be harmful for residents. Knowing common problems and solutions could keep both you and your family members safe. Over the week we will note some of these. We start today with ten and the other ten next Monday.

    #1.  Discrimination against Medicaid-Eligible Residents

Fact – A Medicaid-eligible resident is entitled to the same service as any other resident

Solution – Always resist second-class treatment

    #2. Failing to Take Care Planning Seriously

Fact – Resident’s family has the right to participate in care plan 

Solution – Family should attend all care meetings to keep informed

    #3. Disregarding Resident Preferences

Fact – The facility must make adjustments to honor resident needs

Solution – The resident should voice any and all concerns regarding their needs and make sure they are fulfilled

    #4. Failing to Provide Necessary Services

Fact – The nursing home must provide all necessary care

Solution – Family members should make it clear that a shortage of staff or money is no excuse to provide less service to the resident

    #5. Improper Use of Physical Restraints

Fact – Physical restraints cannot be used as a form of discipline

Solution – The use of restraint can only be approved by the patient’s doctor and the patient. Making sure these rules are followed is vital

    #6. Improper Use of Behavior- Modifying Medication

Fact –  Medication can be used but only when the behavior is a diagnosed issue

Solution – The resident may feel free to say no at any point in treatment and family should monitor what drugs are being administered              

   #7. Excessive Use of Feeding Tubes

Fact – The use of a feeding tube is a last resort

Solution – There should never be hesitation to refuse a feeding tube if the resident is still able to eat with assistance

    #8. Imposing Visiting Hours on Families and Friends

Fact –  A resident’s family member can visit at any time

Solution – If the facility has strict visiting hours, you can tell them that the Reform Law allows family to visit at any time

    #9. Forcing Family and Friends to Take Financial Liability

Fact – A nursing home requires no one to be financially responsible except for the resident

Solution – One may volunteer to be financially responsible but make sure it is never forced and that the resident always makes the final decisions

    #10. Forcing Residents to Give Up Legal Rights and Commit to Arbitration

Fact – There is no good reason for an arbitration agreement to be signed

Solution – During admission, the form should not be signed in case of circumstance changes


Sunday, August 2, 2015

New Rules Have Been Proposed Regarding Nursing Home Safety

Right now, Medicare and Medicaid beneficiaries make up more than 50 percent of the residents in the United States in long-term nursing home and care facilities. The Obama administration has decided to modernize the rules pertaining to the safety of the residents in order to qualify for Medicare and Medicaid payments. The plan is said to change aspects such as staffing, infection control, training, meal times and usage of certain drugs.

Examples of such changes include making rooming arrangements for same-sex couples, siblings, relatives and friends. There will also be also be alternative meal times for residents who eat at different times than normally scheduled.

As far as training goes, nurses will need to be trained in dementia care as well as in the prevention of abuse on the elderly. It is often reported that patients with dementia are often treated with dangerous antipsychotic drugs. The addition of the training will eliminate this danger and promote safety to the residents.

Once the plan is implemented, enforcement ideas will follow to ensure that the safety and needs of nursing home residents is always a priority.


Sunday, July 26, 2015

Moments When Filing Early For Social Security May Be The Right Decision

Choosing the right time to sign up for Social Security is an important decision for a good number of our clients. Many people are depending on their Social Security to take them through their senior years.

          When baby boomers wait until age 70 to sign up, their Social Security payments can increase by 32 percent, and people born after 1959 can have a 24 percent increase when they claim payments at age 70, however only 4 percent of women and 2 percent of men claim their benefits at age 70, according to the Center for Retirement Research at Boston College (CRR).

          Although there are enticing incentives to claim Social Security later, most people choose to sign up for payments at age 62, which is the earliest eligible age. The number of people signing up this early has decreased as more people are waiting for the bigger payout. The CRR report indicates that 48 percent of women and 42 percent of men signed up for Social Security at age 62 in 2013, compared to the 60 percent of women and 55 percent of men in 2005.

           

Here are three instances when filing early for Social Security makes sense:

  1. Coordinating your benefits with your spouse

     

              Providing that both spouses are eligible for benefits, one could sign up early and start receiving Social Security payments while the other files later for a higher amount. If one spouse dies, the surviving spouse, in most cases, will continue to receive the larger of the two amounts.

     

  2. Terminal illness

              With today’s advanced medicine, many people are living well into their 90s, so it is important to not make any rash decisions unless there is an imminent threat to your health. Many retirees have made such decisions based on the assumption that their life span would be shorter and have returned to the workforce. As a result, they often have to pay penalties if they earn more money than the amount allowed by the Social Security Administration.

     

  3. No money and few options to earn money

          Filing for Social Security may no longer be an option if you really need the money.  Unemployed seniors without a steady stream of income may see Social Security as the only way to receive income. In their case, some money may be better than no money at all.

 

Before you make the difficult decision of collecting Social Security early, always weigh your options and to talk to a financial professional.  


Tuesday, July 14, 2015

Medicaid’s Minimum Monthly Maintenance Needs Allowance Increases

Taking care of yourself while providing support for your spouse that receives long-term care benefit can become a difficult task. The spouses of Medicaid applicants are protected by Medicaid laws to ensure they have the minimum support necessary to live while their husband or wife receives long-term care benefits.

The local Medicaid agency determines the well spouse’s minimum income level or the minimum monthly maintenance needs allowance (MMMNA). It is calculated with a formula based on his or her housing costs.

Effective on July 1, the MMMNA has increased for the well spouse. Previously it ranged form $1,966.25 to a high of $2,980, but now the allowance can only be as low as $1,991.25. If the well spouse’s income is lower than the assigned MMMNA, he or she may be entitled to some or all of the couple’s monthly income.

In extreme cases, the well spouse may request an increase in the amount of MMMNA received either by appealing to the state Medicaid agency or by obtaining a court order of spousal support. 


Wednesday, July 8, 2015

The Concern about Aging Caregivers

One of the most common problems with family caregivers is their own age and health.  As people live longer, the problem becomes more and more acute.

The problems that can occur when older caregivers are taking care of loved ones are plentiful. None of these problems are more disconcerting than the health and wellbeing of the caregiver.

The responsibilities involved with caring for an elderly loved one can create a lot of emotional and physical strain. Caregiving requires a lot of intensive work and the person providing it has to make major time commitments, and has to be physically fit enough to assume the role.

A recent New York Times article, More Caregivers Are No Spring Chickens Themselves, offers great insight into this subject.


Monday, July 6, 2015

Supreme Court Ruling Reinforces the Affordable Care Act

The U.S. Supreme Court ruled recently that Patient Protection and Affordable Care Act (ACA), is constitutional. The court decision about the law, which was initially passed in March 2010 and fully implemented in January 2014, assures ACA's ability to provide effective and affordable health care to all. This has great significance to you, elder Americans and the disabled.

The court’s decision affirms that health insurance can no longer have annual or lifetime limits. Before ACA, your insurance would cut off completely and suddenly once you reached its limit. Generally that only happened to people who have had serious illness or catastrophic injury. For millions of people, that often meant the real prospect of losing all coverage in the midst of cancer treatments or other expensive and essential care – often leading to unnecessary death or financial ruin. That’s no longer the case.

Prior to ACA, if you had been diagnosed with an illness or any disability, the insurers could deny enrollment to you. Today, you cannot be denied based on disability or prior conditions.

In late June, the federal government released the latest data on the positive impact of ACA on the percentage of Americans having health insurance. The most significant of the data is that 12.6 million Americans went from being uninsured to insured in just 2014, the first year of ACA's full implementation. That’s great news.


Thursday, July 2, 2015

Healthcare Surrogates

A change in Florida law that goes into effect October 1 will have a significant impact on the concept and designation of healthcare surrogates in the state.

Prior to this change, a determination of incapacity has to be made before the healthcare surrogate can act.  Because a person may regain capacity and in some instances, especially with the elderly, may vacillate in and out of capacity, a redetermination of incapacity is frequently necessary to provide ongoing authorization for the healthcare surrogate to act. This process can make it more challenging for a surrogate to provide effective and timely assistance. Further, some competent persons want the help of a healthcare surrogate with the sometimes complex task of understanding healthcare treatments and procedures and with making healthcare decisions.

The changes to the law allow a person to designate a healthcare surrogate, who may act at any time, including while an adult is still competent and able to make his or her own decisions. While competent, the decisions of the principal control over any contrary decision of the surrogate.

Another change to the law creates the ability to designate a healthcare surrogate for the benefit of a minor when the parents, legal custodian, or legal guardian of the minor cannot be timely contacted by a healthcare provider or are unable to provide consent for medical treatment.

 


Thursday, July 2, 2015

New Florida Guardianship Law

A new Guardianship Law that will do a better job of protecting the elderly and improving the guardianship system went into effect July 1.

The system that had been in place was designed to protect incapacitated elders from exploitation, but it was not as effective as hoped. People often found seniors forced into guardianships that took away their ability to run their own affairs and often created challenging legal expenses. As wards of the guardianship system, these elders can see their assets sold or depleted to pay for care, nursing homes, attorneys' fees and more.

The new law tightens guardianship statutes, clarifies the duties of state-appointed guardians, includes criminal penalties for exploitation or abuse of a ward, requires more notice of emergency temporary guardianship proceedings and makes it harder to suspend a family member's power of attorney during the litigation process, according to the Florida Bar.

While guardianship services are often necessary when people present a danger to themselves or others, there's a risk that less charitable motives can influence the push for guardianship. Failure to properly inform the ward, or relatives, of the legal process can hurt an individual's right to challenge a guardian's actions.

It’s too easy to exploit the elderly. This new law is a great step in eliminating, or at least limiting that exploitation.


Sunday, June 28, 2015

A Charitable Remainder Unitrust (CRUT) is a Good Investment Strategy

The Charitable Remainder Unitrust (CRUT) is coming back into favor with families looking for ways to bypass some of the taxation issues facing traditional IRAs. 

If you are not familiar with it, a CRUT is an irrevocable trust created under the authority of Internal Revenue Code. This special, irrevocable trust features two primary characteristics: (1) once established, the CRUT distributes a fixed percentage of the value of its assets (on an annual or more frequent basis) to a non-charitable beneficiary; and (2) at the expiration of a specified time (usually the death of the settlor), the remaining balance of the CRUTs assets are distributed to charity. The trustee determines the fair market value of the CRUT's assets at the time of contribution and thereafter on the applicable valuation date.

Distributions from a traditional IRA are taxed at regular income tax rates. Families could stretch an IRA to get years of tax-deferred growth, but people often do not appreciate the tax issues and it is human nature to want to cash out. 

A CRUT can solve many of the problems that come up with traditional IRAs. A person should include a provision for a “testamentary” CRUT in their will and then name the CRUT as the beneficiary on their IRA form. The CRUT will make annual payments to the designated heir or heirs for a fixed number of years, with the listed charity receiving the remainder. 

It sounds complicated, but your estate planning attorney should be able to use the CRUT as an effective tool for your family.


Monday, June 22, 2015

Will The Younger Generations Be Financially Ready For Retirement?

We often encourage our clients to plan for the future, but is this important ideal diminishing among the younger generations? 

According to Bank of America and Merrill Edge, from a survey of more than 1,000 Americans, 38% of retirees worked on retirement goals with an adviser before quitting work, while 24% of non-retirees are currently working with an adviser. Saving for retirement is easier when people start earlier, so when retirement does come there will be less stress and more relaxation.

The report also states that around 67% of Millennials (defined by the study as ages 18 to 34), and 74% Gen Xers (35 to 49) who were still working, were most likely to believe they'll be financially stressed in retirement based on how they are currently putting money away. Compared to 59% of current retirees who say they aren't worried about money because of how they saved.

This could partially be due to the fact that retirees are aware of how much money they need now, while the younger generations are unclear as to how much money they will really need in the future.

Despite age, one concern was popular amongst all individuals, the increase in health care costs. Around 65% of all those surveyed said that unexpected medical costs would strain their finances in retirement. Followed by a lack of Social Security benefits with about 38%. As people are living longer, the younger generations are worried about how they are going to have enough funds to support themselves as they age.

Millennials see their family and friends as a way to help tide them over into their retirement. Around 43% said they are counting on some financial help from loved ones if they need it in retirement. While only 4% of baby boomers said they are counting on help from loved ones.

The best way to ensure financial security into retirement is to have a savings plan. It is not too late for Millennials to identify how much money they can save by assessing their financial foundation or their income and expenses and their assets and debts. Saving early in your working years is the best way to ensure a solid future.

 

 


Wednesday, June 17, 2015

Alzheimer’s Research Funding Could Get a $300 Million Boost

In what has to be considered good news and an important step, the U.S. House Labor, Health and Human Services (Labor-HHS) Appropriations Subcommittee this week proposed a $300 million increase for Alzheimer’s research at the National Institutes of Health (NIH). If this historic step increase becomes law, it will be the largest annual increase ever in federal Alzheimer’s research funding. And it is not a minute too soon.

Credit for this sorely needed proposed increase in funding goes to the Alzheimer’s Association, the Alzheimer’s Impact Movement (AIM) and advocates across the country. Back in March more than 1,000 advocated went to Washington to ask for the $300 million increase. Some of them testified about this critical need to members of the subcommittee.

While this is a significant first step, it is part of a year-long appropriations process that will only end successfully with a bill passed by Congress and signed into law. So advocacy must continue.


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