Questions and Answers Surrounding Elder Care Law

1
Questions and Answers SurroundingElder Care Law

• Heather Durham Nadler, Esq.
• Certified Elder Law Attorney
• Heather Durham Nadler, P.C.
• 2600 Century Parkway, Suite 100
• Atlanta, Georgia 30345
• [phone]
• hnadler_at_durhamnadlerlaw.com

2
What is Elder Law?

• Practice area that is defined by the client
  served seniors
• Holistic practice
• Estate Planning
• Planning for Incapacity
• Planning for Long-Term Care

3
Estate Planning at a Glance

• Advance Directive for Health Care
• Durable Financial Power of Attorney
• Last Will and Testaments
• Trusts
• Titling of assets
• Beneficiary designations

4
Planning for Incapacity

• Advance Directive for Health Care
• Durable Medical Power of Attorney
• Living Will
• Durable Financial Power of Attorney
• Last Will and Testament
• Special Needs Trust for Disabled Beneficiaries

5
What happens without Powers of Attorney?

• Guardianship
• Conservatorship

6
What is Long Term Care?

• In-home care
• Independent Living Community
• Assisted Living
• Personal Care Home
• Nursing Home
• Continuing Care Retirement Community

7
Options for Financing Long Term Care

• Pay privately
• Long Term Care Insurance
• Limited Medicare benefits
• Veterans benefits
• Medicaid

8
Private Pay Rates in Georgia

• 24 hour/day in-home skilled care can easily
  exceed 100,000 per year
• Average cost of assisted living is 35,000 per
  year
• Average nursing home cost in Georgia is 60,000
  per year more in Metro Atlanta

9
What does Medicare pay?

• Medicare is designed to cover acute illness not
  chronic illness
• Limited home care benefit - skilled care
• Limited nursing home benefit only if move to
  nursing home follows a 3-day hospital stay
• Days 1-20 in the NH are covered
• Days 21-100 potentially covered with a co-pay

10
Basic Eligibility for VA Aid Attendance
Benefits

• 90 days of active service one of which was in
  wartime
• Other than dishonorable discharge
• Limited income (after deducting unreimbursed
  medical expenses) and assets (lt80,000)
• Permanent and total disability at the time of
  application (over 65 presumed disabled)
• Disability caused without willful misconduct of
  claimant

11
VA Aid and Attendance (cont.)

• Available to a veteran or widow(er) who is blind
  OR living in a nursing home OR unable perform
  activities of daily living
• Amounts
• Veteran with no dependents - 1,644/mo
• Veteran with one dependent - 1,949/mo
• Widow(er) with no dependents - 1,056/mo

12
Nursing Home Medicaid

• Provides payment for nursing home level care for
  the aged, blind or disabled population who meet
  the financial eligibility criteria

13
Income Eligibility Requirements

• The income of the individual seeking nursing home
  Medicaid eligibility must be less than 2,022 per
  month (2009 figure)
• Income of the spouse of the individual in the
  nursing home is not relevant in determining
  eligibility
• If income exceeds the 2,022 income cap, the
  individual must establish a Qualified Income
  Miller Trust

14
Nursing Home Payments

• Member is required to pay all income toward the
  cost of his care at the nursing home
• Exceptions
• 50/month personal needs allowance
• Cost of health insurance premiums
• Spousal diversion
• Incurred medical expenses
• Remaining income is paid to the nursing home

15
Resource Allowances

• A Member may have 2,000 in countable resources
• The community spouse may have an additional
  104,400 in countable resources

16
Countable Resources

• Bank accounts
• Investment accounts
• Stocks
• Bonds
• CDs
• Cash value of certain life insurance policies
• Annuities
• Retirement accounts
• Real estate other than a homeplace

17
Exempt Resources

• Homeplace with up to 500,000 in equity
• One car
• Household goods
• Burial Resource Allowance of up to 10,000
• Certain retirement accounts
• Certain annuities

18
Transfer of Assets

• Deficit Reduction Act of 2005
• Look-back period expanded from 3 years to 5 years
• Penalty period for making a transfer begins when
  the individual is otherwise eligible for Medicaid
  (ie, in the nursing home and assets have been
  reduced to allowable levels)

19
Exempt Transfers

• The following transfers are not subject to a
  transfer of asset penalty
• Transfers to a spouse
• Transfers to a special needs trust for a disabled
  child
• Transfer of homeplace to a caregiver child (as
  defined by Medicaid), a sibling with an equity
  interest in the home, a disabled child or a child
  under 21

20
Estate Recovery

• Effective May 3, 2006
• The Department of Community Health (DCH) is
  entitled to place a lien against all property
  that is owned by a Member at the time of his
  death
• Property passing by joint tenancy, beneficiary
  designation or life estate is subject to Estate
  Recovery

21
Estate Recovery (cont.)

• An estate recovery lien cannot be enforced so
  long as there is a spouse, child under 21 or
  disabled child of the member living
• A lien can be placed at such time as a Member is
  deemed permanently institutionalized (as
  defined by Medicaid) but such a lien cannot be
  enforced if there is a spouse, child under 21,
  disabled child, caregiver child or sibling with
  an equity interest living in the home
• Any transfers made by a Member within the
  look-back period are voidable and may be set aside

22
Questions and Answers SurroundingElder Care Law

• Heather Durham Nadler, Esq.
• Certified Elder Law Attorney
• Heather Durham Nadler, P.C.
• 2600 Century Parkway, Suite 100
• Atlanta, Georgia 30345
• [phone]
• hnadler_at_durhamnadlerlaw.com