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Placement Problems?

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Elder Law Report: Today our guest is Mike Mannion, a Certified Senior Advisor with Senior Care Authority. Mike talks to us about how to find the right care facility for your loved one. Learn More: 704-259-7040 or mcelderlaw.com.

Greg McIntyre:             Okay. Hi. I’m Greg McIntyre with McIntyre Elder Law, helping seniors protect their assets and legacies. And I’m also here with Brenton Begley, who is an attorney with McIntyre Elder Law. And Brenton, say hello.

Brenton Begley:            Hi. How’s it going?

Greg McIntyre:             Or don’t or whatever. So anyway, I’m a director, producer, and commentator today. So we’re trying out some new technology. I think it’s going to work beautifully, just recording, going back and forth. And I’m lucky to have our special guest here today who I work with a lot, and I wanted to bring him on because what he has is valuable to say and the information that he’s putting out is valuable.

Greg McIntyre:             I just recently did a podcast on Boomers Today, which he helped hook me up with, which is a nationally syndicated podcast with the founder of Senior Care Authority.

Mike Mannion:             Right, Frank.

Greg McIntyre:             Right? Frank Samson.

Mike Mannion:             Samson, yes.

Greg McIntyre:             And I really enjoyed that interview.

Mike Mannion:             Yeah, you guys did good. I listened to it.

Greg McIntyre:             I really liked it. He asked some great questions and you can tell he’s done this a couple of times before.

Mike Mannion:             Yes, he has experience.

Greg McIntyre:             So we do the Elder Law Report. We’ve done the Elder Law Report for a long time, too. And tell us a little bit, tell us who you are and tell us what you do, yeah.

Mike Mannion:             Sure. Mike Mannion, my wife and I, we own Senior Care Authority here in the Carolinas, and what we do is we help families, older adults and their families navigate the challenges and frustrations and stresses of all the elder care options that might be out there. We’ve had the benefit of taking care of both sets of our parents. I’m a retired corporate executive that failed retirement and we chose to get back into doing something worthwhile and we know caring for older adults is our passion. We enjoy it immensely.

Greg McIntyre:             It’s been a long time since I have talked about failing retirement. I had done podcasts and radio shows before about literally second careers for people who retire and they find it’s not for them and they go into something else, right?

Mike Mannion:             That’s exactly what we did.

Greg McIntyre:             I work with Mike on a regular basis. Mike does a great job placing people who need placement at the proper level of care and finding solutions to do that. I can give you great legal advice on how to protect assets, activate benefits. I know the rule systems in and out, but Mike is plugged into, as much as I’m plugged in the legal side, I just imagine him, and this is pretty much true I think, pulling up this database of every assisted living, nursing home facility, independent living facility, every place possible around and knowing exactly what vacancies are there, and you’re able to match up the needs of the client with the proper care facility, right?

Mike Mannion:             We listen a lot, Greg. Once we understand what the client’s needs are and what the family’s desires are and preferably what the client’s backgrounds are so we can match them up effectively with the right communities. We sometimes don’t have all the listings of where vacancies are because things change so quickly, but we do know the tenure of the staff of the different communities and facilities in the area. We know what they offer, what they don’t offer. We know which ones speak different languages, which ones don’t. So we’re able to, once we listen and understand what the client is looking for and needs, we have a high batting average of connecting them with the right solution.

Greg McIntyre:             I believe that. I mean Mike goes after his job with a tenacity that you rarely see and it takes a level of care to do that. And I trust that when I hand a client off to you that you’re going to work with them and it’s going to be seamless. We’re both going to work hard on both of our respective sides.

Mike Mannion:             Correct.

Greg McIntyre:             That works out really well for the family.

Mike Mannion:             Well, it is both. Certainly, we can’t be combating each other. That doesn’t help the family at all. They’re already under a level of duress. So the intent here is to make it as clean and smooth, and de-stress as much as possible, but still be very honest and truthful and give them good counsel. I think it has worked very well between us and it certainly is our goal and our objective without a doubt.

Greg McIntyre:             And what I like is that you’re not scared to roll up your sleeves and and do the tough work.

Mike Mannion:             Yeah, we like it.

Greg McIntyre:             Yeah, yeah.

Mike Mannion:             [Crosstalk 00:04:52], but we like it.

Greg McIntyre:             Well, oddly enough, some people don’t.

Mike Mannion:             No, I know. We are different. We know that, but that’s okay. We lived it with our parents, both sets of parents. We understand the stress and duress, and we understand that the answers aren’t simply out there on the internet. We’re feet on the ground. We’re local. We’re in these communities. We talk to people face to face, and we’re able to discern and provide solutions that make sense, financially, emotionally, environmentally, it just makes sense for the families and for clients.

Greg McIntyre:             Sure. And we’ve worked together not on just benefits cases and placement needs right now, but also in guardianship situations where there might need to be a move or to find another facility with the condition of a case, and we’ve been successful. I think that was one of the toughest cases I’ve had lately and you really helped me immensely.

Mike Mannion:             I don’t know how much I helped you. I know you work very hard on it and I know the family is incredibly pleased with the results, and hats off to you.

Greg McIntyre:             Well, thanks. Brenton, do you have any questions for Mike?

Brenton Begley:            Yeah, yeah, I do. I’m curious, Mike, what are some of the biggest challenges that you guys face in looking for placement for an individual and getting him placed?

Mike Mannion:             Oh, well, Brenton, I will say the biggest challenge is what the clients want and need often doesn’t match their financial capabilities. That’s probably the number one thing comes up as often as not all the time. That’s a big deal. Quite frankly, that’s where we use you guys to help us sort, close that gap and find solutions and protect the assets as well as getting to help the need.

Mike Mannion:             The second thing is family dynamics. When you have a situation whether mom or dad or even a spouse with children, the family dynamics can be challenging and we have to listen. We have to understand and sometimes, we have to be the bad guy at the table with the family and we can say things other family members can’t, but we don’t dare do that until we fully understand it.

Brenton Begley:            Right, right. So in this line of work, you hear a lot of things and you hear a lot … Well, me and Greg like to call it street law, but I guess what you would call the stereotypes about your line of work, right? We have stereotypes about our line of work. You probably have stereotypes about your line of work [crosstalk 00:07:14].

Greg McIntyre:             Yes, street lawyers like [inaudible 00:07:17].

Brenton Begley:            Yeah, street lawyers.

Greg McIntyre:             Practicing criminal law, it’d be like jailhouse lawyers.

Brenton Begley:            Yeah, yeah, exactly.

Greg McIntyre:             People who are always there, they know everything, right?

Brenton Begley:            Right, right.

Greg McIntyre:             And you kind of trust them, but you’re not sure. And it’s like, “Yeah, well, I heard this and this person keeps telling me this.”

Brenton Begley:            Right.

Greg McIntyre:             And sometimes when you listen too much to those people, it can get you in trouble ’cause it can limit what you think your options are and [inaudible 00:07:44] problem, yeah.

Brenton Begley:            Yeah. And I mean those people I feel like are out there with regard to nursing homes, assisted living, that sort of placement, there are stereotypes out there. So can you talk about some of those stereotypes and whether or not they hold any weight?

Mike Mannion:             Sure. The biggest, most obvious one, you probably hear this a lot, is that Medicare will cover the expense. Now Medicare does not cover longterm care and that’s something that-

Greg McIntyre:             You mean Medicare doesn’t pay for longterm care?

Mike Mannion:             Believe it or not, it doesn’t. It is one of those myths.

Brenton Begley:            Right.

Mike Mannion:             It’s broadly accepted and embraced, but it’s not true. The idea of assisted living community is the same as a nursing facility. Not true. But that’s okay. We find that families going through this, they only go through it for the first time so we don’t expect them to know that. We expect to be able to sit down and explain and decipher all that. But we ask a lot of questions to make sure we know where the myths are that they’re latching onto so we don’t have things come up later on in our work with the family that creates a yield or a stop sign.

Mike Mannion:             So two of the biggest one is they think Medicare is going to cover the expense and that there is no difference between assisted living communities and skilled nursing facilities. They think of the old nursing homes, the old retirement homes. That’s largely not a true scenario for most of my clients.

Brenton Begley:            Right. You bring up the differences between the level of care and as I’ve seen, I mean I’ve been in a few nursing homes, assisted livings that there’s just a difference between the facility to facility, right? So what would you say the average quality of care is out there?

Mike Mannion:             Well, that’s a challenging question. Averages are dangerous, right? Overall, you’ve got a lot of well trained people taking care and providing care for the residents in these communities, in these facilities. Averages are just that. I think it is reflective of leadership of the communities and facilities. The leadership sets the tone of how well people perform their functions whether it be in this industry or other industries. So we stay very close to understanding who the leaderships may be, who’s filling those leadership roles in these communities and facilities, which gives us a higher level of confidence in our recommendations and counseling the clients.

Mike Mannion:             We counsel well over a hundred clients a year. And if you met one of my clients, you’ve met one of my clients.

Brenton Begley:            Right.

Mike Mannion:             Each one has unique needs and we love that. We embrace that. So we don’t jump in with assumptions. Every once in a while, I got to catch myself that I think I know the answer, but I just have to make sure I listen long enough and ask enough questions to make sure I’m not setting myself in a bad situation where I’m not the person I say I am.

Brenton Begley:            Right. Yeah, and that’s what I’ve found, too, is in working with people and in working with facilities is that they tend to provide a pretty high level of care and they do a good job. There’s well-trained people, people care. You always have these aberrant situations where you hear stories, right? But I would say that that’s more on the rare side from what I’ve been able to see. But the way to prevent that, right, is to use someone like you to make sure that the placement is right for them and their needs.

Mike Mannion:             Well, I agree and I think we’re seeing that. If we do our job well, the placement will have a much higher likelihood of being a good fit and a good experience for the whole family. But you got to do the homework. You got to understand what the family wants. I’d like to know what the background of the older adult is. Are they spiritual and religious? Do they like gardening? Do they like book clubs and reading?

Mike Mannion:             I had one woman that the challenge was that she was struggling with some dementia and she reverted back to her home language, which was Farsi.

Brenton Begley:            Wow.

Mike Mannion:             Wow. That was tough.

Greg McIntyre:             I don’t know Farsi.

Mike Mannion:             Yeah. So we finally found a community with a lot of work and a lot of research that had a full time nurse’s aid that spoke Farsi. Well, that made that whole connection work well for that family. She had to go a little further away from home than they wanted, but it was well worth the balance. That’s the kind of research that makes a difference.

Greg McIntyre:             They had to go to Farsi.

Mike Mannion:             They had to go Farsi.

Greg McIntyre:             Sorry. So no, but in all seriousness, this is a serious topic, but we need a little levity, right? So I agree that the quality of care is good. There’s a lot of people trying hard in the industry, even among different price ranges for facilities and even if it’s Medicaid versus private sometimes. And to that point, you help place people whether they’re coming out of pocket to pay private pay.

Mike Mannion:             Right.

Greg McIntyre:             Or you can even help if they are low on funds, they need to roll to a Medicaid option and maybe there needs to be placement right away because that’s an issue, right?

Mike Mannion:             Greg, you’re right and we worked on a few. And having that plan, I think that’s where you guys come in in a big way is having that roadmap, that runway so there’s not only just the immediate solution, but what’s it look like three months, six months, a year down the road, I think is pretty critical. If not, it just starts the whole stress and duress all over again, which is not fair to the family and it’s not ideal for the older adult seeking residency in one of these communities. So thinking it out, planning it out, having a plan and a way to get there is pretty critical. That’s the holistic approach we try to get to with help with you guys.

Greg McIntyre:             Yeah. And we talk about from an estate planning and overall perspective the plan ahead. We’d much rather you plan ahead, and I don’t mean five minutes ahead.

Mike Mannion:             Right.

Greg McIntyre:             Maybe years ahead would be great, right? Because sometimes, those who build a plan, plan to fail, which is some old saying that Ben Franklin re-coined in some quote book back in the day, but was originally some kind of … I traced it back to some philosopher or poet that was maybe ancient Greek or something like that. But yeah, planning ahead is best. So if you can do that on the elder law estate planning side, that’s great. If you can do that with longterm care insurance …

Mike Mannion:             That’s an option.

Greg McIntyre:             That’s great. If you could get with someone like you to think about those issues, but I mean couldn’t you give people a lot of insight?

Mike Mannion:             Absolutely.

Greg McIntyre:             You really could.

Mike Mannion:             We can share the stories and give the direction and connect people with the resources that might be useful to them.

Greg McIntyre:             You should do a seminar with me one day. I just made that connection.

Mike Mannion:             Yeah, absolutely.

Greg McIntyre:             I mean they would be great information, people needing that because people don’t understand, I don’t think people realize, families realize, the chances of needing some type of assisted living or nursing home care.

Mike Mannion:             Well, the numbers out there was 70% if you’re 65 and older at this point, roughly 70% of us will be needing some level of assisted care. And by the way, I know the data point I read recently was there were an estimate of 54% of that 70% do not have any plans in place at all.

Greg McIntyre:             Right, or not capable. Because as human beings, we are motivated by fear and pain, they’re our number one motivators. So it’s like right now, it’s happening right now, but to plan ahead is easier and better. So Mike, if someone needs to get in touch with you, how can they get in touch with you? I’m in Charlotte, North Carolina right now. Brenton’s not too far down the road, maybe 45 minutes down the road right now.

Brenton Begley:            That’s right.

Greg McIntyre:             And Mike, you’re also in Charlotte, Charlotte area.

Mike Mannion:             I’m in Charlotte. My office is in Charlotte, in South Park area, but we cover nine counties around that-

Greg McIntyre:             Cover nine counties around that-

Mike Mannion:             We do. Between my wife, myself, a couple care managers, we cover nine counties.

Greg McIntyre:             Sure. And how can people get in touch with your organization, you’re Senior Care Authority in Charlotte?

Mike Mannion:             We are. We’re in Charlotte and you just go to mike@seniorcareauthority.com, all one word.

Greg McIntyre:             So you email Mike there.

Mike Mannion:             That’s the easiest way. And phone number is (704)754-8754, and that number will reach us no matter what. It’ll reach myself or one of our team. It will go right into our voicemail and text, whatever works best for you. And if we for some reason none of us connected to the phone, I assure you you’ll get a response back the same day.

Greg McIntyre:             Absolutely. And we’ll put the number up on the screen so it’ll stay there for awhile and … So even though we’re talking locally today, Senior Care Authority as we said, Frank Samson founded it.

Mike Mannion:             Yeah.

Greg McIntyre:             He’s in California.

Mike Mannion:             He is.

Greg McIntyre:             We did the podcast, he called me from California to do the podcast.

Mike Mannion:             Correct.

Greg McIntyre:             So I have to believe there’s more Senior Care Authorities out there.

Mike Mannion:             There are about 50 of us and we go by a pretty high standard of ethics and integrity and training, and quite frankly, I have folks that are living here, but their children are … Like Seattle, Washington, I had one recently. So we helped that family manage from a distance. We have a placement going right now. A family here is placing a loved one up in Ohio. So we’re able to go across the country and soon [crosstalk 00:17:11] .

Greg McIntyre:             [Crosstalk 00:17:11].

Mike Mannion:             Yeah, absolutely and soon, believe it or not, we might actually be looking at Mexico and Canada before long.

Greg McIntyre:             Really? [Crosstalk 00:17:19].

Mike Mannion:             [Crosstalk 00:17:19]. We’re looking at it. Right now, it’s US.

Greg McIntyre:             Okay, okay. Great, great.

Brenton Begley:            And your licensed in Mexico?

Greg McIntyre:             Yes.

Mike Mannion:             That’s right.

Greg McIntyre:             So we’ll work on that, Brenton. We need to be [crosstalk 00:17:30], too.

Brenton Begley:            I’ll take the Mexican bar exam.

Greg McIntyre:             There you go.

Mike Mannion:             Yeah. What kind of bar would that be?

Greg McIntyre:             I don’t know. But I thank you for being on our show today, the Elder Law Report and Brenton, thanks for being on with us today and-

Brenton Begley:            Yeah. Great talking to you, Mike.

Greg McIntyre:             Yeah. And if you have any questions, call Mike at 704-754-8754, and he can help you whether you’re in the local Charlotte, North Carolina, South Carolina area.

Mike Mannion:             Right.

Greg McIntyre:             Or beyond, okay. And you could always I’m sure Google Senior Care Authority, okay, and get someone in your locale, but Mike can direct you. He can be a good resource for you to get to the right person and the right area in your state. So have a great day out there and we’ll keep bringing you great content every week with the Elder Law Report. See you, Brenton.

Mike Mannion:             Thank you.

Greg McIntyre:             All right. Play us out.

You’ve Been approved for Long Term Care Medicaid. Now What?

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Now What?

            As an Elder Law attorney, much of what I do is help people pay for their long-term care. It has become a large part of our practice, which is no surprise when you consider that 70% of individuals over the age of 65 will need some type of long-term care and that care costs can range anywhere from $5,000 to $10,000 a month. For many people, the goal is to get Medicaid to pay for your cost of care. And why wouldn’t you? You pay into Medicaid your whole life. You should be entitled to see at least a little bit of that money. But what happens when you get Medicaid approved?

There are many “street lawyers” out there spreading myths about Medicaid and how it works. The best way to address what happens when you get Medicaid is to address two of the main myths:

I.         They take all of your income.

            This is not necessarily true. Once you’re approved for Medicaid, they will calculate you Patient Monthly Liability (PML). This is the amount you will be liable to pay to the facility.  Your PML will be calculated based on your cost of care and income, from whatever source. Depending on what level of care you’re receiving e.g. assisted living or nursing home care, you will receive a nominal monthly allowance between $30 and $60 per month.

            The PML will eat up most to all of the income unless you have a spouse or a dependent family member who resides with your spouse. If either applies, you can divert your monthly income to your spouse and dependents up to a maximum limit of $3,0161. For example, your spouse makes $1,000 a month but their cost of living is $6,000 per month, you can divert your income to your spouse to cover the difference between their income and cost of living up to the maximum amount i.e. in this example $2,161 can be diverted.

II.        They can take your home.

            This too is a half-truth. The home, your principal place of residence, will not count as an asset for Medicaid purposes. Thus, when they count up your assets to see if you qualify, the home typically won’t be included in that calculation. Thus, before qualification and while you are receiving Medicaid, they can’t just come in and take your home.

            Where your home is at risk is when you pass away. The Medicaid death penalty—the amount that the government can recover from you when you die—can come in and use your home to pay back Medicaid. However, there are ways to protect this like a Ladybird Deed.

Getting qualified for Medicaid doesn’t mean you lose your home and all of your income. You should know the rules to protect your family and property. If you have questions about Medicaid and long-term care, our experienced attorneys can help.  Call McIntyre Elder Law at (704) 259-7040.

Book Your Appointment Today!

Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

Does the US Care About the Elderly?

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Does the US Care About the Elderly?

As the baby boomer generation ages so too rises the collective age of the nation. As the nation ages, we will run into more and more issues; issues such as how to pay for long term care and how to deal with dementia. A new age (no pun intended) of the elderly, what has been deemed the “silver tide”, is coming and we are not prepared for it.

We do Guardianships All Wrong

If a loved one cannot make decisions for themselves, for whatever reason e.g. dementia, and you do not have power of attorney, then you must seek guardianship of that person to make decisions on their behalf. The issue with guardianships is that to obtain guardianship, you must first have your loved one adjudicated incompetent. This means that you’re having the court deprive them of their liberty by declaring them unable to make decisions on their own behalf. They will remain as a “ward” of the state until such time as their competency is restored by proving to the court that they are no longer incompetent—which is not easy to do.

There are a couple glaring problems with guardianships:

  1. We do not understand dementia. Dementia is much like other cognitive issues in that it affects people differently. It presents itself in a unique way in each individual it touches. And, just because you suffer from dementia, does not mean you’re per se incompetent. After all, it varies in its severity.
  2. We do the process all wrong. When I say the ‘Court” adjudicates the individual incompetent, I mean a clerk, sitting as judge, makes this decision. A clerk is an employee of the court system, who is not required to have any formal legal or medical training, and who is given temporary judicial authority for the purpose of the hearing. Many times the government is the one bringing the petition for guardianship. These people are appointed a third party (called a guardian ad litem) to give an objective option. However, the GAL does not represent the ward and they tend to be just as much a part of the system as the government. So, we have a system whereby people are losing their rights even though we do not quite understand the extent (or lack thereof) of their illness. Oh, and by the way, there are little to no safeguards preventing this from happening.

A guardianship can be nothing more than an exercise of the blind leading the blind. Where the government rubber stamps orders to deprive people of their rights as they are moved through the system.

We Pay for Long Term Care All Wrong

As medical care gets better, the population’s longevity increases. However, just because someone lives longer does not mean they are ensured to have any quality of living. Many ailments that were previously a death sentence are no longer as serious of a threat. But they are an ailment nonetheless. Therefore, the downside of our amazing medical technology is that we are essentially keeping people alive longer and prolonging their medical needs. It’s a brutal way to look at it, but the truth tends to be brutal.

So, more people will need long term care. We know this because more people than ever are reaching age 65 or over. And if more people need long term care, then we are going to have an issue paying for it. We know this because we are experiencing the issue now and have been for some time. Long-term care can range from $5,000 to $10,000 per month. Currently, individuals have three options to pay for care: 1) They can use long-term care insurance. This is a good option, but you must qualify, and you must maintain the premiums. 2) They can pay out of pocket. This is not a good option because most people cannot afford to pay $5k to $10k per month. 3) Lastly, they can use government benefits i.e. Medicaid. This can be a great option but is very restrictive and hard to get.

We need a solution. Perhaps further regulation on long term care facilities would help to lower their exorbitant fees. Maybe a system similar to Medicaid but easier to obtain would be a cost-effective alternative. Whatever the answer it needs to be different from the status quo.

Conclusion

We need better solutions to these problems we are facing. The population is aging and still nothing has been done to curb the impending wave of emotional and economic turmoil, which makes you wonder: does the US care about the elderly?

Book Your Appointment Today!

Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

Special Needs Trusts

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What is a Special Needs Trust?

A Special Needs Trust is a special kind of trust called a D4A Trust, set up in the US Code, which reads:

This sub-section shall not apply to any of the following trusts: The trusts containing the assets of an individual under the age of 65, who is disabled as defined in section 1382C sub-section A, sub-section 3 of this title, and which is established for the benefit of such individual by the individual, a parent, a grandparent, legal guardian of the individual, or court, if the state will receive all amounts remaining in the trust upon the death of such individual.”

That means the state would be the primary beneficiary. Remember, we are spending that money on the person for things they need during their life. This allows us to do that without affecting their current benefit. So, this can be part of a strategic estate plan for those who have special needs children or grandchildren.

If, for example, one of your children were to become disabled, you would want the option for your executor to deposit money into a Special Needs Trust. This then would not affect benefits such as, SSI (Supplemental Security Income) for income, Medicaid for health payments for a child if they are in need because of excess healthcare costs. They may have an SSI payment where they’ve been declared disabled and are receiving a check to pay for housing and food. You want to supplement their income but not kick their benefits off-line, because that payment is income dependent.  

A Special needs Trust can also be part of Medicaid Crisis Planning. If a senior or their spouse needs care, part of the money (in an unlimited amount), can be placed in a Special Needs Trust. That’s a non-countable asset transfer even within the lookback period of three years for assisted living, five years for nursing home Medicaid in North Carolina. This can help someone qualify for Medicaid benefits to pay for assisted living or nursing home care. They would still then be able to use their assets in a productive way to help their family.

Special Needs Trusts are a great planning tool for estate planning and elder law attorneys.

McIntyre elder law is a great resource for Special needs Trusts.

If you have any questions, please give us a call 704-749-9244, or go to mcelderlaw.com

Greg McIntyre JD, MBA Elder Law Attorney

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com

Guardianship Proceedings Constitutional in NC? Why You Should Be Concerned.

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Guardianship Proceedings Constitutional in NC? Why You Should Be Concerned.

Instinctively, we are somewhat geared to trust the government. The government and courts, especially in the United States and North Carolina, are set up to help us, right?  Not necessarily in the case of guardianships in North Carolina.  It is odd to think that in this day and time, there may still be court proceedings that have questionable constitutionality, but this article proposes and examines that the way guardianship hearings are conducted, especially for elderly adults, are unconstitutional on several grounds.

         Guardianships in North Carolina are governed by N.C. General Statute Section 35A.  A Guardianship hearing is one in which the competency of an individual is being questioned; if this person is found incompetent, a Guardian will be appointed to make the healthcare decisions, financial decisions, or both of that individual. Guardianship hearings in North Carolina are closed (or private) hearings.  Only parties to the action and interested parties are allowed in the hearing.  Parties to the action include the Petitioner, Respondent, and the Guardian Ad Litem (GAL).  The Petitioner is the party that brought the action to pursue guardianship over another individual.  The Respondent is the person for which guardianship is being sought. Finally, the GAL is an attorney appointed to both represent the Respondent and to be a fact finder and report to the court, make observations as to the competence of the Respondent, and make recommendations as to who should be appointed as the Guardian if the Respondent is found incompetent.

A Petitioner may seek Guardianship of the Person, which is guardianship over the healthcare and personal decisions of the Respondent.  A Petitioner may also seek Guardianship of the Estate, which is guardianship over the financial matters of the Respondent. Additionally, a Petitioner may also seek General Guardianship, which grants guardianship over both the estate and personal matters of the Respondent.

Guardianship hearings in North Carolina are private, closed hearings that are not open to the public. For example, in most criminal trials, there is a public hearing that allows the public and press to observe and report. According to The National Constitution Center in a discussion of how the U, S, Supreme Court has interpreted and applied the 6th Amendment and particularly the right to a public hearing:

[1]The Court has enforced the “public” aspect of the trial right much more strictly. Criminal proceedings may be closed to the public and the media only for “overriding” reasons, such as national security, public safety, or a victim’s serious privacy interests.

North Carolina Guardianship hearings, on the other hand, are not subject to such public oversite or public scrutiny.  Logically, one could conclude that a closed court proceeding would require more constitutional safeguards to protect the rights of the Respondent; but logic, in this case, would be wrong.  Because of their confidential nature, there are very few statistics kept regarding guardianship cases.  Therefore, it is difficult to quantitatively define the percentage of people found incompetent when a guardianship petition is brought.  As an attorney who practices in this area of law, I can tell you that almost every guardianship petition results in a finding of incompetence, and the GAL, rather than a hearings officer, is actually in charge of this outcome.

I compare guardianships to criminal court proceedings because both have the ability to strip someone of their freedoms.  Subsequently, a criminal court proceeding has many constitutional safeguards and requirements protecting the rights of the accused, such as:

  1. The Due Process Clause under the 14th Amendment;
  2. The Equal Protection Clause under the 14th Amendment;
  3. Supervision of the trial by a judge who is an educated lawyer, trained in the rules of evidence and other critical areas that are crucial to conducting a fair and constitutional hearing;
  4. A jury of peers who will weigh the evidence and decide guilt or innocence.  The judge merely decides the length of the sentence;
  5. A public trial, not a closed proceeding, to ensure transparency and accountability;
  6. If the defendant cannot afford private counsel, then a criminal defense attorney will be appointed as a zealous advocate for the accused;
  7. The defendant is required to be present at the trial;
  8. Medical evidence cannot simply be written on letterhead from a doctor with no right to cross examine your accuser (6th Amendment).

These safeguards are in place because the stakes are high: the accused is facing the loss of personal freedoms, life in prison, or even death.

To compare, in a Guardianship hearing, a GAL is appointed to investigate the situation, question all parties, and report to the court.  They are in no way a zealous advocate for the Respondent.  In fact, the duties of the GAL are deeply conflicted: how can one attorney both zealously represent the Respondent and his or her best interests, while simultaneously acting as the court’s independent investigator, reporting their perspective on whom should be appointed as the Guardian of the Respondent if (and when) the Respondent is found to be incompetent.

An assistant clerk is in charge of the hearing, not a judge who is an attorney. A clerk may have any level of education and experience, and is generally not an attorney and certainly not an elected judge.  But, in practice, the assistant clerk is not in charge of the hearing, the GAL is.  A clerk sides with the GAL and rubber stamps the GAL’s recommendation for Guardian the majority of the time. So, in reality, the GAL makes that decision, not the clerk/hearings officer.

Because of this relationship, these hearings are rigged in such a way that the Respondent is almost always found incompetent.  The Respondent is simply walked through the process without a second thought—the Respondent doesn’t even have to be present.  All rights and freedoms can be removed in this hearing,  just like a person found guilty of a crime and facing life in prison, yet the guardianship hearing was not presided over by a judge and they weren’t even brought to trial.  Even a convicted felon and facing life in prison may retain ownership and control over property, unlike the Respondent in a guardianship proceeding.  They are often housed in a facility and chemically imprisoned for the rest of their lives.  Is this equal protection under the laws? Can this be constitutional?

Guardianship hearings do afford an option for a jury trial as follows:

§ 35A-1110. Right to jury. The respondent has a right, upon request by him, his counsel, or his guardian ad litem, to trial by jury. Failure to request a trial by jury shall constitute a waiver of the right. The clerk may nevertheless require trial by jury in accordance with G.S. 1A-1, Rule 39(b), Rules of Civil Procedure, by entering an order for trial by jury on his own motion. The jury shall be composed of 12 persons chosen from the county’s jury list in accordance with the provisions of Chapter 9 of the General Statutes. (1987, c. 550, s. 1.)

But how often are jury trials demanded in a North Carolina guardianship proceeding? Rarely ever. I would estimate less than 1 in 100 guardianship cases are tried in front of a jury.  A jury trial may be requested by the Petitioner, Respondent, and/or the GAL as the parties to the action, or by the assistant clerk or hearings officer presiding over the hearing.  Family members, unless they are the Petitioner, do not have standing to request a jury trial—only a party to the proceeding may make this request.  If the Petitioner is Adult Protective Services (APS), a division of the Department of Social Services (DSS) in North Carolina counties under the supervision of the North Carolina Department of Health and Human Services (NCDHHS), then they are the adverse party to the Respondent.  The APS attorney has no reason to ask for a jury trial, and often has a very close working relationship with the assistant clerk conducting the hearing.  The assistant clerk may never have presided over a jury trial, as normally is the case; if they have, it would be very few cases and assistant clerks, again, are typically not trained or equipped to properly preside over a jury trial.  The GAL rarely, if ever, requests a jury trial for the Respondent.  This brings into question if GALs are actually acting as zealous advocates for the Respondents they are appointed to represent.  How can a seasoned GAL work hundreds of guardianship case and never feel compelled to request a jury trial for their client?  Would this fly in a criminal court?  No, it would not.  It is a clear indication of a “going through the motions” mentality and attitude that is pervasive in guardianship proceedings in North Carolina courtrooms.

The players are not fully to blame, however, as the setup of the proceedings weigh heavily towards a finding of incompetence.  The players are very familiar with this process generally, and there is no player appointed as a zealous advocate for the “accused,” the Respondent, who stands to lose all rights and freedoms.  With their dual role, the GAL cannot be a zealous advocate for the Respondent.  The Respondent may not even be at the hearing.  Who is in place to challenge the Petitioner or question the work of the GAL?  No one.  I have often questioned whether a GAL is even necessary in these proceedings.  There is no GAL appointed to independently investigate in other types of court hearings, where the parties do a great job of litigating the issues from which the judge makes an informed decision. Certainly, there is no GAL appointed in criminal felony proceedings where the accused stands to lose freedoms for years. A GAL is not a zealous advocate for the Respondent like an attorney in a criminal proceeding. The GAL serves multiple roles leaving the Respondent without a true zealous advocate.

Does a guardianship hearing adhere to traditional rules of law and evidence?  As previously discussed, an assistant clerk who is rarely an attorney, and certainly not an elected judge, is appointed to preside over the Guardianship hearing.  Imagine if a judge presiding over a criminal trial with a defendant facing life in prison stepped aside and asked an assistant clerk to sit in his place to preside over the hearing.  This would be unprecedented.  Civil Rights advocates would be up in arms; criminal defense attorneys everywhere would turn their attention to this one trial where an assistant clerk presided over a hearing where the defendant was facing life in prison.  The country simply would not stand for it. Well, this is the reality in a Guardianship hearing.  The rules of law and evidence, which attorneys spend much of their law school and legal lives learning and refining, are thrown out the window as an assistant clerk unfamiliar with the rules, and certainly with their nuances, takes the helm to preside over a similar hearing with the highest stakes: the loss of all rights and freedoms.

What about an appeal, you may say? The case is appealable to Superior Court, but an appeal is rarely filed.  The appeal for the competency part of the hearing is a de novo standard, meaning that there is a new trial on the issue of competency.  However, for the portion of the hearing where a guardian is appointed, this is an “abuse of discretion” standard which is a very hard burden to overcome.

These cases are also ripe for ex parte communications, or communication that does not include all the parties with the presiding hearings officer or judge.  This is strictly forbidden in the Rules of Professional Conduct, but these types of hearings lend themselves to communication between parties that all work for or are appointed by governmental parties, except for the family.  Because the parties to the hearing often work closely together and see each other frequently, if there are no ex parte communications between the GAL, the assistant clerk, and the APS attorney, then there is certainly the appearance of impropriety stemming from the setup of the hearings and the frequent proximity of the parties.  This can leave a private party or immediate family member who is not a party to the action feeling powerless, helpless and hopeless as they grasp for straws and a footing in a hearing that keeps them at an arm’s length decision over the fate of their loved one.

The institution of family is certainly the foundation for this country, and by in large the human race.  Families and familial relationships should be exalted, revered and respected.  In North Carolina Guardianship proceedings, families simply are not shown this respect, especially if APS is involved;  at that point  the family takes a back seat, and by “back seat” I mean literally a seat in the audience.  The immediate family members remain as “interested parties,” but are only allowed to sit in the audience of this closed hearing.  They are not sitting as the Petitioner, and they are not allowed to call witnesses, present evidence, or cross examine witnesses.  The state and all other parties employed or appointed by it run the entire show.  The family is essentially left out to be silent unless called upon.  Why doesn’t the family have a “say so” or grounds as a party?  Since when did the state become more important than family?  It should not be.  Family must be held in higher esteem than the state, or we will witness the demise of our state and nation, which was built upon individual rights, freedoms and family.

In a criminal court proceeding, it would be unprecedented to hold the hearing without the defendant being present for trial.  An accused has a Sixth Amendment constitutional right to cross-examine accusers and examine evidence offered against him.  In a Guardianship hearing, the Respondent does not have to be present for the hearing and can be found incompetent with merely the submission of a doctor’s note, leading to all rights stripped away from you.

Guardianships in North Carolina may present a case of civil rights violations. Federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information.  Do the North Carolina Guardianship laws discriminate against individuals based on age?  Guardianship cases in North Carolina certainly affect the elderly the most, and there is a disproportionate impact on them than other age groups.  Therefore, there should be additional protections and safeguards to protect the elderly and their families in these closed and private proceedings.

Guardianship is widely overused and should only be granted if the court cannot find suitable alternatives.  The court rarely looks for suitable alternatives, even though there are plenty of alternatives to a full guardianship, such as a limited guardianship, reviews, and assistants to help out the individual.

The hearings, the assistant clerk, and the players are not fully to blame.  They are merely doing their best to play their role and abide by the law.  The sad truth is that the assistant clerk generally does not want to preside over these hearings and knows they are not equipped to do so, yet the guardianship laws of North Carolina are crafted in a way that requires them to handle these cases. This is something that this attorney believes needs to change, and none too soon.  With the aging Baby Boomer population or “Silver Tsunami,” these cases are going to happen more and more frequently and will require more of the courts time and attention.  The elderly will be even more disproportionally affected than they are presently, creating more of a civil rights issue than what currently exist.

How can we change the laws? How can you help? Great questions. One way is for attorneys to keep challenging guardianship proceedings and the “quirky” rulings and backwards procedures that happen there on a daily basis.  The attorney can fight hard for the family, and should do so without fear of reprisal from the assistant clerk, the GAL, or the Department of Social Services.  These attorneys should appeal any erroneous ruling by an assistant clerk to be brought to light in front of a Superior Court judge.  If the Superior Court judges don’t make the right call or give the issues the time and attention, the attorney should appeal that ruling to the North Carolina Court of Appeals.  Light is the best disinfectant, and bringing light and attention to Guardianship hearings in North Carolina is one way to challenge and change them. Included in their appeals should be the civil rights and constitutional grounds that are frequently heard by the court of appeals, which will certainly bring much needed attention to these closed hearings.  The elderly certainly deserve proper due process and equal protection under the laws of the United States and the State of North Carolina, the same as any other citizen of any age in other courtrooms.  As for me, I will keep fighting and keep appealing and enduring the gasps and gawks of other players in this game who wonder, “what the hell is he doing?”

written by:

Greg McIntyre

Elder Law Attorney

704-749-9244

greg@mcelderlaw.com


[1] The National Constitution Center website: https://constitutioncenter.org/interactive-constitution/amendments/amendment-vi


The Government Wants to Take Your Home

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The Government Wants to Take Your Home

That’s right. The government isn’t happy with simply taking your hard-earned money each week i.e. taxes. If you give them the chance, they will take your retirement, your home, or any other assets they deem appropriate for recovery.

Here’s how: statistically, you have 70% chance of needing long-term care at some point in your future if you’re over the age of 65. Paying for long-term care can be exorbitant. It can range anywhere from $5,000 to $10,000 a month. If you’re anything like the normal American, you cannot afford that large of a cost for very long. Therefore, you may need to get qualified for Medicaid to cover the cost of care.

Most people don’t walk around already qualified for Medicaid. Therefore, most people fall into two traps set by the system. 1. They assume that since they don’t currently qualify for Medicaid, that they can’t get qualified; and 2. they fail to protect their assets. The result of mistake number 1 is that you are forced to liquidate and spend every hard-earned asset on care before Medicaid will kick in. The result of mistake number 2 is that when Medicaid does kick-in, they can take your hard-earned assets to recover what they’ve paid.

Medicaid does have some strict thresholds for qualification and they also have some strict rules for recovery of assets. Thankfully, people like me sit around all day thinking about ways to get people qualified and prevent them from losing their assets.

Despite your level of assets, or income, with some guidance you may be able to qualify for Medicaid without losing everything in the process. If you have questions about long-term care or asset protection call the experienced attorneys at McIntyre Elder Law today (704) 359-7040.

If you have questions about protecting property, allow the experienced attorneys at McIntyre Elder Law help you today. Call (704) 259-7040.

LEARN MORE AT: mcelderlaw.com.

Book Your Appointment Today!

Brenton S. Begley
Elder Law Attorney

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

The Government’s Loophole to Take Your Protected Property

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The Government’s Loophole to Take Your Protected Property

Every day, attorneys exploit useful law and policy to help individuals protect their hard-earned assets. Not only are these attorneys saving people’s homes and retirements, they are also providing the public with a rare commodity, peace of mind. However, if you’re the least bit cynical—which attorneys are paid to be—that peace of mind may fade as you wonder how the government could undo what you did to protect your legacy.

The simplest way the government could undo protection is to change the law. That’s right, the government could just say “we no longer want you to be able to protect your property with a trust, deed, etc.” This would have huge consequences and would force lawyers to think outside the box to get around these new prohibitions in order to save people’s property. Inevitably, much of the “getting around” would develop through countless litigations and the loopholes beneficial to individuals would develop along with the case law.

But what if you’ve already had the foresight to plan ahead and put thee now prohibited protections in place. Can the government actually undo what’s already been done? The answer is a lawyer’s favorite phrase: “it depends”.

The thing with property protections is that the deal with property. Regardless of whether that property is personal or real property, the Government is limited in how they can take it. After all, we have this little provision in the Bill of Rights called the Fifth Amendment. The Fifth, among other things, says that the government cannot take your property without just compensation and due process of law. This means that the, typically, government must give you something in return for what they take, and you have the chance to be heard before their allowed to do so. For example, if the government wants to take a strip of your front yard to widen a road, you have the opportunity to argue why they should not be able to take it, but even if you lose, they still have to pay you for it.

Another factor working in the favor of the individual is the generally recognized principle that retroactive laws are unfavored. This means that if the General Assembly of North Carolina adopts a law, law makers are unlikely to allow it to apply retroactively. This is because retroactive application of a new law tends to be patently unfair. For example, let’s say the government raises property taxes, it’s enough of a burden to have to pay a higher amount in the future, but to also be forced to pay that amount for past years would be unconscionable.

The courts are also careful to apply news laws to the past, not only because ex post facto (the latin term) laws are disfavored, but they also raise Constitutional concerns. What this breaks down to is that a retroactive application of a change in the law is very rare.

So, what does this mean for you? The only certainty is that the future with be uncertain. State’s budgets wax and wane and laws change as a result. However, history gives us some reassurance that we have done so far cannot easily be undone. So, what if you want to put protections in place, but you’re scared that the laws may change? It’s like the old saying goes, you make hay while the sun shines.

If you have questions about protecting property, allow the experienced attorneys at McIntyre Elder Law help you today. Call (704) 259-7040.

LEARN MORE AT: mcelderlaw.com.

Book Your Appointment Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

Do I Inherit?

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Do I Inherit?

Many people assume that even if their parent died without a will, they will still be entitled to inherit by virtue of their familial relationship. This is not always the case.

Let’s say that your father passes away without a will—also known as dying “intestate”. Although your father and mother were very much in love when you were born, they never legalized their relationship. You contact the administrator of the estate to get an update on your inheritance and they tell you that you must prove that you’re the child of your father before they can distribute anything to you.

Can they do this? The answer is yes. When a father passes away with children who were born out of wedlock, those children or their representative must prove their “legitimacy” before they will be entitled to their share of the estate.

It is not enough that the father’s name is on the child’s birth certificate. They must have been formally legitimized by the adoption process, by the putative father filing a petition with the court, or by subsequent marriage of the putative father and birth mother.

Proving whether an individual is a legitimate child of the decedent is a rare issue. For obvious reasons, it does not apply if the decedent is the child’s mother. But due to North Carolina’s antiquated laws, the manner in proving one’s relation to their putative father is rather restricted. If you have questions about your inheritance or the probate process in general, give the experienced attorneys at McIntyre Elder Law a call at (704) 259-7040. LEARN MORE AT: mcelderlaw.com/probate.

Book Your Appointment Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

How to Save Assets as You Age

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How to Save Assets as You Age

As an Elder Law attorney, one of the main questions I get is “how do I save my assets”? What is implicit in this question is the fact that your assets are at risk as you age. To understand how to save your assets, it is first important to know the risks you face. We’re going to talk about the main one: Long Term Care.

The numbers go like this, 70% of individuals over the age of 65 will need some type of long-term care in the future. Bearing in mind, that some people pass away before needing long-term care, that number is a pretty conservative estimate. A 70 plus percentage chance of needing long-term care means that paying for the cost of care should be paramount in your planning for the future.

Without a proper plan, you may have to pay the cost of care out of pocket. Considering that the average cost of care can range from $5,000 to $10,000 per month, it won’t take long until you end up liquidating all of your assets and hand everything over to the long-term care facility.

How do you prevent this from happening? One option is to get Medicaid to cover the cost of care. Medicaid is a program that you pay into your whole life. Every time you earn a paycheck, a little bit gets taken out for Medicaid. So, you may as well utilize it. The problem most people have is figuring out how to qualify for Medicaid AND preserve your assets. That’s where an experienced Elder Law attorney can help.

Whether it’s through a spend down, trust work, deed work, or a combination of the three, there’s a lot of options out there to get qualified for Medicaid, save your assets, and have the cost of care covered. If you have questions about preserving your assets and paying for long-term care, give the experienced Elder Law attorneys at McIntyre Elder Law a call at (704) 259-7040.

Book Your Appointment Today!

Regards,

Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

www.mcelderlaw.com

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

MARRIED COUPLES!!! Doctrine of Necessaries… What it is and why it matters to you!

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Not planning to protect money and real estate as a married couple can keep them vulnerable to lien recovery for long term care debts.

First, what is the doctrine of Necessaries? This doctrine in North Carolina means that one spouse may be held responsible for the other spouse’s medical bills. These medical bills can include hospital bills, doctor’s bills and yes, nursing home care bills.

Why does the fact that a surviving spouse may be responsible for the other spouse’s medical bills matter? Well, the obvious answer is that the surviving spouse would have to pay those bills… But… If the surviving spouse failed to pay those bills then those bills could attach to the surviving spouse’s estate when the surviving spouse passes away.

For example: If the surviving spouse passes away and they owned a home, maybe other real estate, perhaps some monies and/or investments that they wish to pass to their children and grandchildren, then the debts of the spouse that predeceased the surviving spouse could then be attached to those assets as they pass through the probate estate or estate administration of the 2nd (surviving) spouse.

The surviving spouse, no doubt, may feel an extreme sense of confidence that they have no debt and that they will not be burdened by the spouse who passed first. In the example above, let’s posit that the first spouse needed extensive nursing home care. The state may even send a lien notice after that spouse passes away that (for the purposes of this example) $126,000 is owed to the State of North Carolina, Department of Health and Human Services (DHHS). The surviving spouse may even ignore this notice, not realizing that this amount will attach to his/her estate when they eventually pass away and risk sacrificing assets that would otherwise pass to the next generation lien free.

Are there ways to save the assets of the surviving spouse from these liens of the deceased spouse? Yes. There are multiple ways to prepare the assets of the surviving spouse to not only protect the home, other real estate, money and investments but to also keep the surviving spouse in control of those assets for the remainder of their lives.

Deed planning with deeds like life estate and ladybird deeds can keep one in control of their properties for the rest of their lives and protect them from a recovery under the Doctrine of Necessaries or because of a personal lien they may have at their death. Trusts can also help protect assets and pass them lien free to loved ones.

READ: Lady Bird Deed Article Here.

Watch Video on How Ladybird Deeds Work Here.

READ: Trusts Article Here.

Watch Video on How Trusts Work Here.

Watch Video on Deed Planning Here.

We at McIntyre Elder Law would be glad to talk through options with you. We can help. You may call us at: 704-749-9244 or reach us online at www.mcelderlaw.com.

Greg McIntyre JD, MBA Elder Law Attorney

Regards,

Greg McIntyre

Elder Law Attorney

704-749-9244

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