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Elder Law Basics – Protecting Your Hard Earned Money & Property

in Seminars by Greg McIntyre Leave a comment

Do you know someone who has lost their home and property due to an unforeseen long-term healthcare need? Learn how to protect yourself. Learn how to protect your hard earned money and property. Elder Law Attorney, Greg McIntyre will give a short presentation on how to do just that. Come join us for a night of fun and education.

This event will take place on Tuesday, October 7, from 6:00 – 7:00 p.m. at The Owl’s Eye Vineyard & Winery. Dinner will be served, and you are welcome to bring a spouse or friend.

Please RSVP by calling McIntyre Elder Law at 704-259-7040 or by emailing greg@themcintyrelawfirm.com by Friday, October 3.

Sponsored by: McIntyre Elder Law, GCG Wealth Management, Crystal Springs Retirement Estates and Yadkin Bank.

Elder Law Basics

Elder Law Basics

Home Health Care: What Services are Provided?

in Articles by Greg McIntyre Leave a comment

Is it the same as if you’re in a nursing home and being cared for by a nursing home attendant? Is it more? What about running errands or if I need to go get groceries or cat food?

Types of Care

There are a number of people that may have arthritis. Arthritis is worse in the morning. Once they get their muscles warmed up and get moving, then they’re solid for the rest of the day – but they need that help.

They could be in an institutional setting, or they could stay at home with just this one thing to help them going. Others need help getting ready for bed at night. But during the daytime, they can do their own tasks.

Still others have a home health aid there 24 hours a day, preparing meals, running the errands, and taking them to the beauty shop. There are live-in programs as well. Someone is there to just live with the client and might be there 7 days a week.

These people need someone there overnight. If they wake up and need to go to the bathroom in the middle of the night, there’s someone to assist them.

Or just that companionship. They want a companion that can sit down with them, read the paper, discuss the news of the day. Watch Jeopardy and Wheel of Fortune together, talk about it and interact.

There’s skilled nursing, taking care of people who might be on a ventilator.  These ventilators are only the size of a laptop, but the person can’t breathe without it. Taking care of it, suctioning the trachea – that’s when you really need somebody.

Home Care Technology

Taking care of someone with a ventilator at home was unheard of years ago. There are so many options in home care with the technology today. Personal emergency response systems or a “Help, I’ve fallen and can’t get up” button – it used to be that if you fall down, you press the button. What if I fall down unconscious?

They’ve reverse engineered that now to detect if a person fell. If I don’t push the button, it’s going to respond.

There are medication-dispensing units. I put a medication cup in this box, and at 8 o’clock in the morning, the medicine cup will come down and say, “It’s time to take your 8 o’clock medications.” After 3 times, if I don’t do it, it rings into an operator.

The operator then calls my house and says, “Hey you forgot to take your medicine.” If I don’t answer, then they call my loved one to come and check on me.

The technology in home care is absolutely phenomenal. Military is probably the leader in telehealth. There are programs right now where the University of Washington does cataract surgery on patients in Alaska from Washington via robotic surgery with lasers.

There was a physician in Paris who actually did an appendectomy on a patient in New York. A doctor was standing by as they were demonstrating it. But as we develop that technology more and more, the ability to take care of people in the home is just going to explode.

Everyone wants to stay at home. With these kinds of advances, more and more are going to be able to do that.

That’s the wave of the future – getting away from a centralized hospitals and nursing homes, at least in the cases where it makes sense. There’s obviously still going to be a need for those places, but home care is on the low end of the affordability scale and people want to stay at home.

From a Medicare/Medicaid perspective, there are less resources coming out of the system as well. This is just a burgeoning, exploding industry with a lot of potential in the future.

Advantages of Home Care

Probably the number one reason is “my home is my castle”. It’s where people feel comfortable. If I want to walk around in my underwear, I can walk around in my underwear. 

People recuperate better at home. Less infections. Just having that continuity, someone who’s familiar with your health problems, mannerisms, and habits. They can pick up on subtle changes quickly, refer them out to the doctor, get them taken care of – whatever they need to have done.

Who Pays For Home Health Care?

in Articles by Greg McIntyre Leave a comment

Let’s discuss who pays for home health care. Other than having money buried in the backyard or digging into your retirement fund, what are the different options? How can you pay for it?

Private Funds

One of the first choices is private funds. The individual has the money to pay for it, and so they pay for it. That’s obviously going to drain your resources, but that is one way that home care gets paid for.

Veterans’ Benefits

Another way is through the VA administration if the person is a veteran. It’s called a Home Attendant Program. Those benefits are available in an assisted living facility and/or home care. The way to get the ball rolling with that is you get your veteran to the local VA and talk to your primary care physician there.

Typically, that gives relief for 6 to 9 hours a week; 2 to 3 days a week of 3 hours of service. For those individuals, it may be just what they need to keep them at home. Unfortunately, the hours aren’t any longer than that.

The VA program is a great benefit for the veterans who qualify. One of the qualifying factors is you have to have served one day in a wartime period. But you didn’t have to be there.

So Korean War, Vietnam War, and Gulf War – if you served one day of service during a wartime period, you qualify with this program.

Long Term Care Insurance

Another avenue is through long term care insurance policies. Those policies range all over the board. Some of the policies are great. Some are not so good, but there is more standardization with the policies now than there were when they first came out a number of years ago.

With the long term care insurance policy, you’re going to need a physician’s order and at least two activities of daily living that are being performed each day to qualify. Another thing that’s important with the long term care insurance policy is the elimination period. That’s like your deductible.

It’s usually the number of days. You’re going to have a 30-day or 100-day elimination period. But they don’t talk about how much money you have to spend per day.

That means you can strategically get what you need in a shorter period of time, and then when your elimination period is exhausted, you can bump up to the number of hours you qualify for under the long-term care insurance policy. Again, preserving assets – it’s a great way to do that.

If you’re looking at a long-term care insurance policy, you want to look at an inflation rider. If you don’t have that and you have your policy for 30 years, you’re going to get $50 a day. In 30 years, $50 a day is not a whole lot.

So, look for an inflation rider; what are the daily limits.

Private Insurance

We’ve talked in another blog about Medicare and Medicaid. The other one is private insurance. Private insurance, depending on the policy, does not cover custodial care most of the time, which a lot of home care falls under. Private insurance policies typically don’t pay for the assistive care or personal care type services.

There may be a skilled nursing benefit, but if it says, “we don’t cover custodial care,” that’s probably going to be the personal care services that someone will receive at home.

Know Your Options

So those are some of the major players that help pay for the services. Just recapping – private funds, long term care insurance policies, private insurance policies, Medicare, and Medicaid.

One reason I do these podcasts, blogs, and seminars is to try to educate people. There are other options where you don’t have to leave the home, and you can protect as many assets as possible.

I call this a really cutting-edge area of law. Things are constantly changing. New tools are being developed everyday to help people.

Medicare vs. Medicaid: Understanding the Benefits and Differences

in Articles by Greg McIntyre Leave a comment

How are you going to pay for home health care when you or your spouse find yourselves in a situation where one of you might be draining all the assets because of a catastrophic health care incident? Or where someone’s in a situation where they don’t want to come out of their home?

Benefits of Home Care

Being cared for in the home is certainly less dramatic. It also allows you to keep your dignity, staying in the home you’ve worked hard for your entire life. That’s what we’re about: trying to help people preserve their hard earned money and property – and keep their dignity in the process.

There are direct health benefits of staying at home. Less confusion, because it’s in an environment that you’re familiar with. Less infections, because there’s only one or two people in the home. Statistics demonstrate that people recuperate at home better than they do in an institutional setting.

Even just the peace of mind. All of us, if we have a choice, would rather be at home. Most of the time you don’t find people saying, “Please take me out of my home and put me in an institution somewhere.”

There are financial benefits as well. But health care in general costs money. Unless you have really planned for this with long term care insurance – which is not the norm – then you can quickly exhaust your other liquid assets paying for health care, especially as you age.

That’s where Medicare and Medicaid come in, whether separately or working in combination.

The Difference Between Medicare and Medicaid

How do those differ?

They are totally separate programs, Medicare and Medicaid: when they apply, how long Medicare lasts, and when it runs out and Medicaid can come in and take over.

Medicare is basically a health benefit for people who are typically over 65 years of age. If you’re younger than 65 and you have a disability that lasts longer than 2 years, you can qualify for Medicare prior to age 65. Also, with end-stage renal disease, you can get Medicare benefits very quickly and very early on.

Medicaid is really a program designed for the indigent, for those who don’t have the financial means to care for themselves. Carved out of that is a health care program, and typically they fall under Medicaid waivers.

How Medicaid Can Help You

In North Carolina, we have two Medicaid waiver programs for personal care services. That’s going to be assistance in your activities for daily living – bathing, dressing, ambulating, eating, mobility, transferring, and things of that nature.

One is called Personal Care Services or PCS, which you need a doctor’s order for. Typically, in that service, you can get up to 80 hours of services per month, which works out to be about 18 hours a week. Just this year, North Carolina legislator passed a law that allows an additional 40 hours for those with dementia, for a total of 120.

The second program is the CAPDA program. With your activities in daily living, you’re typically going to get  upwards of about 36 hours a week, which is more than PCS.

With both of those programs, you’ll have to qualify for Medicaid, whether you’ve already gone through the process or still need to apply. The PCS program can take a couple of months to get on. A couple of years ago, each county was capped out of the number of slots that they had for the CAPDA program.

Then, we have one other Medicaid waiver program, which is private duty nursing and is for RNs and LPNs to take care of people in the home who have catastrophic needs. They need either a tracheostomy and/or a ventilator – pretty high-tech nursing needs.

How Medicare Can Help You

The Medicare side of it is really a totally different program. If you’ve had a qualifying hospital stay, you’ve got to be getting better. But the real advantage to a Medicare program – when you have home health – is that you’re going to get up to a 60 day spell of illness.

It’s called an “intermittent spell of illness”, and that’s going to be paid 100% under your Part A Medicare. You might get nursing services, a physical therapist or occupational therapist, speech language pathologist, or a home health aid that comes and assists with bathing. And that’s going to last for 60 days.

Now, there are times when they can be recertified for an additional 60 days, but it usually caps out at that 60-day period.

When You Need Both

There are programs where Medicare and Medicaid can overlap at the same time. Then there are people that have finished their Medicare service and still need additional services after that. That could be through Medicaid, private pay, or long term care insurance.

And obviously there aren’t the stringent qualification requirements for Medicare like there are for Medicaid. One of the beauties of the Medicare benefit for home health is that it’s paid at 100%. For those individuals who qualify for that, it’s a great program for them.

The Importance of Planning Ahead

One of the most heartbreaking calls that I get is from the people that fall in that gap. They’re over-resourced for Medicaid, and they’re under-resourced to pay for it privately. Perhaps their income level doesn’t allow them to roll over and let Medicaid pay for it. It’s a hard place.

That’s why it’s important to plan ahead and make sure you’re prepared, whether it’s an emergency situation or simply old age.

Medicare vs Medicaid

in Elder Law TV by Greg McIntyre Leave a comment

Joe Seidel, Division Director for Bayada Home Health Care explains the differences in using Medicare versus Medicaid to pay for in-home healthcare.

In-Home Care – What Services Are Provided – with Joe Seidel from Bayada Home Health Care

in Elder Law TV by Greg McIntyre 1 Comment

Joe Seidel, Division Director for Bayada a home Health Care talks about what many services are provided with home healthcare. Great discussion about the future of healthcare and the technology involved.

Who pays For Home Healthcare

in Elder Law TV by Greg McIntyre Leave a comment

Joe Seidel, Division Director of Bayada Home Health Care, explains the many different ways to pay for home healthcare.

Crystal Springs – Retirement Community & Town Homes

in Elder Law TV by Greg McIntyre 3 Comments

Don Peeler shows off his no-step, custom built retirement community, Crystal Springs.

Special Needs Trusts: The Current Law and Pending Legislation

in Articles, Newsletters by Greg McIntyre Leave a comment

Introduction

Individuals with special needs often face “quality of life” challenges compared to those without special needs.  Many times individuals with special needs require added expenses to meet those needs.  The added financial burden often leads individuals with special needs to depend on public benefits to help them meet those costs.   Unfortunately, public benefits often fail to meet all of the needs of a disabled individual.  However, the supplemental needs of those individuals (meaning needs not covered by public benefits) can be met by using funds held in a Special Needs Trust (SNT).

 

Understanding Special Needs Trusts

A Special Needs Trust is a trust that is established for an individual with special needs who is or may become dependent on public benefits.  The trust is specifically identified to meet certain supplemental needs and to enhance the quality of life for the beneficiary, the special needs person.  Most importantly, the SNT is created so as to not disqualify the beneficiary for the public benefits being received.  The trust, then, is a pool of money available for the benefit of the beneficiary in order to provide him or her with goods or services that public benefits do not provide.  For example, SNT funds may be used for in-home care services that would otherwise not be affordable to the beneficiary.  Should a person with special needs receive these funds outright and outside a properly created SNT, the individual may become ineligible for the public benefits and reinstatement of the benefits can be a difficult process.

There are two types of SNTs:  A third-party SNT and a first-party SNT.  A third-party SNT is one in which a loved one has assets that he or she would like to use to benefit the individual with special needs.  Whereas, a self-settled SNT is one in which the assets belongs to the individual with special needs. 

A self-settled SNT is often used in the case of a litigation settlement.  One example involves an individual who was in a car accident and sued the “at fault” driver successfully.  By the time the lawsuit settlement was reached, the individual had been declared disabled.  Instead of the settlement funds being given outright to the person who is now disabled, the funds could be placed into a self-settled SNT for the benefit of that individual.  This allows the person with the disability to continue to receive benefits and have the settlement money available to him or her for supplemental purposes, increasing his or her quality of life.

Self-settled SNTs have been recognized by federal law since 1993 under 42 USC §1396p(d)(4)(A).   A self-settled SNT contains a mandatory payback provision, meaning that upon the death of the beneficiary, the State will be paid back from the remaining trust assets up to the amount of public benefits expended on behalf of the beneficiary during his or her lifetime. 

Within a self-settled trust an individual trustee or corporate trustee is appointed to manage the funds in the trust.   Choosing the correct trustee is an important decision as the trustee will be responsible for managing and investing trust assets, and is responsible for following the guidelines regarding proper distributions from the trust.  Failing to do so could result in a loss of benefits for the trust beneficiary. 

 

Problem with the Current Law

The law, as currently written, states that a first-party trust may only be established by the individual’s parent, grandparent or a court of competent jurisdiction.  It appears that the option for a competent individual to establish his or her own trust under 42 USC § 1396p (d)(4)(A) was a simple mistake by the writers of the law.  However, this minor mistake causes major financial losses to disabled individuals.  It requires those disabled individuals who have no parent or grandparent alive to establish the trust, to expend money on an attorney and court costs in order to ask for a court order establishing the trust.  The money to accomplish this is often such an impediment for these individuals, that they do not pursue it and end up either kicked off the public benefits or forgoing the supplemental monies they would otherwise have access to.

 

Pending Legislation

Currently there are two identical bills sitting in the House of Representatives and in the Senate which would create the option for competent individual who is disabled to establish his or her own trust under 42 USC § 1396p(d)(4)(A).  In May 2013, H.R. 2123 was introduced in the House and the next day it was referred to the House subcommittee on Health, where is currently sits.  A few months later in November 2013, S. 1672 was introduced in the Senate, was read twice and referred to the Committee on Finance.  The title of the identical bills is the “Special Needs Trust Fairness Act of 2013” and is described as “a bill to amend title XIX of the Social Security Act to empower individuals with disabilities to establish their own supplemental needs trusts.” 

As advocates for individuals with special needs, it is important that we support this bill so that our clients have more choices for themselves with regards to establishing special needs trusts.  If you feel so inclined, please contact your Congressional representative and ask for the passage of these bills.  Encouragement from us of the importance of this bill to our clients is imperative to get the bill recognized and enacted.  Otherwise, it may get lost in the shuffle and our clients’ needs may not be adequately addressed.

 

Conclusion

A Special Needs Planning attorney is an essential advocate when preparing SNTs for individuals with special needs.  The attorney will be able to identify the type of SNT that would be helpful in the particular situation and will know how to properly construct it so as to prevent the person with special needs from being kicked off his or her benefits.  There are many roadblocks that can arise in the planning process and it is imperative that you have an attorney familiar with the many federal and state laws and regulations concerning public benefits and SNTs.

If you have a client with special needs who would benefit from the establishment of an SNT, please contact us.  We are committed to and passionate about assisting those with special needs and look forward to helping in any way we can.

Reverse Mortgage Seminar

in Elder Law TV by Greg McIntyre 1 Comment

Chris Munson – Yadkin Bank Reverse Mortgage Expert educates us on the ins and outs of reverse mortgages.

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