Archive for the ‘Elder law’ Category

Bringing suit against a Maine nursing home for negligence, abuse or neglect

Thursday, February 27th, 2014

Elders who reside in nursing homes are very vulnerable. Most are heavily dependent on others for help with their daily activities. Many are cognitively impaired and unable to speak for themselves. Nursing homes in Maine and elsewhere are often understaffed and struggle to meet the needs of their residents. As a result, residents may experience problems such as pressure ulcers (bed sores), malnourishment, dehydration, falls and elopement. This can lead to a needless suffering and even death.

The first step, when encountering abuse, neglect or negligence, is to report it to the Maine Department of Health and Human Services’ licensing division, who will promptly investigate. Another resource is Maine’s Long Term Care Ombudsman, which will advocate for you or your family member and work with the facility to correct the problems.

Increasingly, however, residents and their families are going further: seeking the assistance of Maine elder law attorneys and personal injury attorneys in bringing suit against Maine nursing homes to get money damages for the elder. These attorneys use, as a basis for the law suit, the federal and Maine nursing home laws which set standards for nursing homes.

Unlike the medical malpractice case, which usually concerns a discrete act by a health care provider, the nursing home case typically involves a pattern of inadequate care over a period of time. An attorney who is skilled in Maine nursing home cases will gather evidence by interviewing the resident (if the resident is competent), the family and the staff, and will also review the patient’s chart.

If you or a family member have been harmed as a result of inadequate care in a Maine nursing home, we will be glad to evaluate the case and partner with skilled counsel to bring a suit for damages.

by Sally M. Wagley, Maine elder law attorney

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Understanding Long Term Care Insurance

Tuesday, January 14th, 2014

Have you been advised to purchase long term care (LTC) insurance? Before making such a purchase it is important to understand what such insurance will and will not cover. These are some of the things you need to know:

Nursing home-only coverage vs. coverage of assisted living and home care: Ideally, the policy should cover these different types of care. Most people prefer to be cared for someplace other than a nursing home.

Benefit “triggers”: Most policies will not start to pay out until you are very disabled, mentally or physically, and your care needs are high. These policies require that you be at the point that you need as substantial amount of help with at least three activities of daily living or be so mentally impaired that you are a danger to yourself or others.

Daily benefit rate: The policy will cover up to a certain amount per day: for example, $150, $200 or $300 per day. The higher the daily benefit rate, the more the policy will cost. Currently, nursing home care in Maine costs an average of $8000 a month, and some facilities charge as much as $10,000. Thus, your LTC insurance will likely not cover the full cost and you will need to use some of your income or savings.

Elimination period: Most policies will not start covering the cost on day one. The policy will require that you receive care for a certain number of days before it will start to pay: for example 30 to 90 days. This means that you will need to draw on your savings until the elimination period is over.

Length of benefit period: There are few if any policies these days that will cover you for your lifetime. Policies will generally cover your care for two to five years. This means that if you need care for longer than this, you will need to start paying from your savings.

Inflation protection: Long term care costs increase every year. If you decide to buy LTC insurance, you should consider opting for inflation protection so that years from now if you need care, the benefit amount will more closely match the cost.

By Sally M. Wagley, Maine elder law attorney

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Medicare patients in nursing homes CAN leave for a special event

Friday, January 10th, 2014

Are you or a family member a Medicare resident of a skilled nursing facility, perhaps rehabilitating after a hospital stay? Have you or your relative asked to leave the facility for a few hours or a day for a special event or purpose such as Christmas dinner or a short visit home? Frequently, to the great disappointment of the resident, the facility may tell the resident that if he or she leaves, even for a few hours, he or she will lose Medicare coverage.

This is not accurate. Medicare rules state: “An outside pass or short leave of absence for the purpose of attending a special religious service, holiday meal, family occasion, going on a car ride, or a trial visit home, is not, by itself evidence that the individual no longer needs to be in a skilled nursing facility for the receipt of required skilled care.” As long as the resident returns to the facility by midnight, the facility can bill Medicare for the day’s stay. Medicare rules state that it is “not appropriate” for a nursing home to tell a resident otherwise.

In short, you should feel free to talk to nursing home staff about a short visit out of the facility. The nursing home staff may have legitimate concerns about how such a trip may affect your health and safety; but should not refuse your request based on misinformation about Medicare coverage.

By Sally M. Wagley, Maine elder law attorney

The information provided on this website is for informational and educational purposes only. This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Medicare Recipients and ObamaCare

Wednesday, November 6th, 2013

With the launch of the government’s new health care exchanges on October 1, 2013, I have had a number of clients ask me how this will affect them as Medicare recipients. The answer is “not at all.” The exchanges are intended to serve people you don’t get Medicare: typically people who are not yet retired.

If you are on Medicare, you will continue to get your coverage the same way: You will automatically receive Medicare Part A and you will have the option of signing up for Medicare Part B by paying a premium which is automatically deducted from your Social Security check. (Some recipients opt to have a “Medicare Advantage Plan” which takes the place of Parts A and B.) You will also continue to have the option of purchasing a Medicare supplement policy and a Medicare prescription drug plan.

By Sally M. Wagley, Esq.

Beware This Very Expensive Medicare Detail

Thursday, September 12th, 2013

Medicare rules and policies are always confusing but there are some rules that, over time, people tend to hear about. One of the Medicare policies that people tend to be familiar with is the one that basically says, if you have been an inpatient in the hospital for three or more days, Medicare will pay for Skilled Nursing Care for up to 100 days. This rule has recently been at the forefront of much news because of a settlement in the Jimmo v. Sebelius case. Prior to this settlement, Medicare would often deny payment for Skilled Nursing Care if the patient was not making “substantial improvement”. Now, since the Jimmo settlement, Medicare must pay for care during those 100 days if the care is needed to maintain or simply prevent deterioration in the patient’s clinical condition. Continued improvement is no longer necessary.

The Jimmo settlement is great for patient care, but there is another detail in the Medicare law that people should be keenly aware of. This has to do with those three days of “inpatient” hospital care. The unknown detail has to do with what is considered “inpatient” hospital care. For Medicare purposes, in determining what is considered an “inpatient” hospital stay, emergency room care and being in an “observation” status do not count as inpatient care. A patient can be held in “observation” status for multiple days, on a regular hospital unit, in a regular hospital bed without any clues that, for Medicare purposes, they are not considered an inpatient. Then, when that patient is later transferred to a Skilled Nursing Unit, Medicare will not cover their care. The Center for Medicare Advocacy states in its Summer 2013 Center News: “Hospitals stays that are classified as observation, no matter what types of services are provided and no matter how many days the patient remains hospitalized in a bed, are considered outpatient.”

Congress has put forward legislation that would require time spent in observation to be counted toward meeting Medicare’s three day requirement but its passage appears doubtful despite large bipartisan support and 90 co-signers, so this problem is not going away quickly.

What can you do? ASK!!! If you or a loved one has been admitted into a hospital and are likely to move to a Skilled Nursing Unit, speak to your doctor or the Nurse Manager of your hospital unit about whether you are classified as an “inpatient” or an “observation” patient. If you are told that you are an observation patient, ask your physician to review this status and explain to your doctor why it matters; they may not know. Once you know that you are considered an “inpatient”, ask that this be confirmed in your medical record. Not knowing or not speaking up can lead to a financial disaster when you assume your care at a Skilled Nursing Unit is covered (because you have been in the hospital for 3 or more days) and later find out that Medicare will not pay for that care.

Patrice A. Putman is an attorney with Levey, Wagley & Putman, PA in Winthrop. She specializes in Elder Law, is also a Registered Nurse, and has worked many years in health care administration. Contact Attorney Putman at 377-6966.

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Second marriages: what if your spouse requires expensive long term care?

Friday, July 12th, 2013

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients, either divorced or widowed, become happily married later in life. Sadly, after a number of years of love and companionship, one of them may start to decline and need expensive care in a nursing home or assisted living facility. For purposes of discussion, we’ll assume that the husband is the one who needs institutional care, with the wife remaining at home. The wife may find out to her chagrine that she is expected to use her own assets — accumulated by her before the marriage from a lifetime of work –on her husband’s nursing home costs. She may find out that after he has depleted his own funds, he will not qualify for state assistance through Maine’s Medicaid program (called MaineCare) until she has spent down her own funds to a certain point. This causes her great anxiety, for two reasons: most important, she wants to make sure that she has enough to live comfortably for the rest of her life; in addition, she may want to be able to pass on assets to her own children.

What can a couple do in this situation? Advance planning, while both are still healthy, is the best option. If they qualify for and can afford long term care insurance, that will make it less likely that the wife will have to spend down her own savings. Another option is an irrevocable trust, whereby the wife places some of her own assets into an irrevocable trust, naming one or more of her children as trustees. She gives up control of the principal in the trust but will receive income from it. In this way, she can put some of her assets off limits for purposes of her husband’s possible future long term care expenses. In order for her to safely do this, however, she must feel reasonably confident that neither she nor her husband will need long term care in the next five years, as MaineCare has a “five-year look-back” rule which penalizes people who transfer assets in order to qualify for MaineCare.

For a couple who is already in crisis, there are still options. The spouse may purchase a certain type of annuity which meets the requirements of the law. This annuity will protect her assets while providing a stream of income. She can invest her countable assets into exempt assets, such as repairs or improvements to her home, or the purchase of a newer car.

As a last resort, some spouses choose to divorce for the purpose of preserving assets. This is a wrenching decision for most clients, but may be the only option for ensuring that the spouse at home to preserve what she has worked so hard for over the years. This divorce, however, will not prevent the wife from continuing to provide love, companionship and care to her husband, just as if they continued to be married.

Second marriages: providing for a surviving spouse in a trust

Tuesday, July 9th, 2013

By Sally Wagley, Maine elder law and estate attorney

We have had a number of clients who fit the following profile: They are married for a second time, each with children from a previous marriage. One of them has substantially more than the other. Let’s assume for discussion purposes that the husband is the one with more than the wife. The husband wants to ensure that, should he die first, the wife has enough income to live comfortably for the rest of her life. However, he does not want to leave assets to her outright, as he wants to make sure that his children will ultimately inherit.

One option is for the husband to leave some or all of his estate to a trust for his wife’s benefit. Such a trust typically provides that she gets all the income generated by the assets placed in trust, to give her a stream of income which is adequate to maintain her standard of living. The trust may provide, in addition, that should the trust income and her own income be inadequate, the wife can receive amounts of principal which are needed for this purpose.

Who should be the trustee of this trust? One option is for the husband to name one or more of his children as trustees. If his estate is substantial, it is possible to have a bank serve as trustee. Or, if the husband trusts the wife to be a responsible trustee and to abide by the rules of the trust, he can name her to be the trustee, with one or more of his children to become the successor trustee if she becomes incapacitated.

This arrangement may be coupled with giving the wife a life estate in any real estate which he owns separately, such as a primary home or a cottage.

Second marriages: pre-nuptial and post-nuptial agreements

Friday, June 28th, 2013

By Sally Wagley, Maine elder law and estate attorney

Some clients who marry later in life do not think, before the wedding, about the usefulness of a prenuptial agreement. In the flush of romance, these clients may not have their minds on practical matters, such as ensuring that their assets will remain separate should they divorce and ensuring that children from previous marriages will inherit.

After the wedding, when things calm down, these clients may turn their attention to these sobering issues. They may, at that point, wish they had executed a prenuptial agreement. Is it too late for these clients to execute an agreement of this kind?

No, it is not too late for these clients. Post-nuptial agreements under which each member of the couple agrees to forego certain spousal rights in the event of divorce or upon death. In this situation, each one will need to see advice from his/her own lawyer, as a single lawyer would face a conflict of interest in representing them both. Also, each one has to make full disclosure to the other of all financial assets that each has, so that there are no secrets between them in this regard.

Second marriages: the “elective share,” your spouse’s right to part of your estate when you die.

The law in Maine is such that, absent an agreement to the contrary, a married person cannot disinherit his or her surviving spouse. The law gives the surviving spouse the right to go to court to demand that he or she receive at least one-third of the deceased’s “augmented estate.” The determination of the amount that the surviving spouse can receive takes into account not only the assets in the deceased spouse’s name but also some of the surviving spouse’s assets.

We have many clients who marry later in life, sometimes for the second time. Each spouse has accumulated assets separately and may have children from a previous marriage. One or both spouses may wish to favor his or her own children in the will, choosing not to leave anything to the surviving spouse or perhaps to leave only a modest amount. For those clients who die without being aware or without addressing the “elective share” issue, the deceased’s children may be in for an unpleasant surprise, should the surviving spouse choose to seek more from the estate than what was left to him or her in the deceased’s will.

Clients who are either planning to marry or who are already married, who wish to agree that neither will file for the elective share against the other’s estate can put this in writing in a prenuptial or postnuptial agreement.

Second marriages: giving your surviving spouse a life estate in your home

Wednesday, June 19th, 2013

By Sally Wagley, Maine elder law and estate attorney

Consider the case of this typical client of ours, a man in his 60′s, married for the second time to a lovely woman, also in her 60′s. He has three grown children from his previous marriage and several grandchildren. She too has children and grandchildren of her own. Both have property, savings and investments of their own, which they wish to keep separate, and which they wish to leave directly to their own children rather than to each other.

When they marry, the wife moves into the husband’s home. The husband chooses to keep the home titled in his own name, rather than put his wife’s name on the deed, so that the home will ultimately go to his children when he dies. At the same time, he does not want his wife to have to move out of the home when he dies. He comes to us for advice.

One of the options we offer him is revising his will so as to provide his wife with a “life estate” in the home. The will we prepare for him states that should his wife survive him, she has the right to occupy the home for as long as she wants, provided she pays the expenses (taxes, insurance, utilities, maintenance) and takes care of the home. Should she choose to move out of the home, the property will then belong to his children, who can do with it as they choose. If she remains there until she dies, then upon her death the husband’s children will at that point receive title to the home.

In this way, the husband can ensure that his wife will not be uprooted while at the same time ensuring that his children will inherit the property when she no longer needs it.

Legal Issues Facing People in Second Marriages

Thursday, June 13th, 2013

By Sally Wagley, Maine elder law and estate attorney

In the next couple of weeks, we will be blogging on some of the legal issues facing older people who are in second marriages. As Maine elder law and estate planning attorneys, we have many clients in this situation. Many of them have children from previous marriages and want to balance the needs of those children with the needs of a surviving spouse.

Some of the legal vehicles for ensuring this balance are: prenuptial and postnuptial agreements; leaving the surviving spouse a life estate in the home; marital and family trusts; a special needs trust for a spouse who is likely to need expensive long term care.

We hope you will find this information useful and we will be glad to advise you if you are in a second marriage.

 


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