Caregiving

Fiduciary Duties & The New Rule for Financial Advisors

Published on: November 22, 2016 | by Ettinger Law Firm

The New Rule

When consulting a financial advisor, we all assume that they would have our best interest in mind when determining where our portfolio should be invested and what investments best suit our interests, however, this has not always been the case. This year, the Labor Department issued new regulations that require industry professionals dealing with individual retirement accounts and 401k accounts to act on the best behalf of their clients.

Before this new standard was issued, financial advisors only needed to meet a suitability standard, meaning that the financial advisor only has to choose what is suitable for the portfolio, which is not always what is in the client’s best interest. A financial advisor under this standard could invest in a fund he found suitable, but may be more risky or expensive, although a similar option is available with a different fund. This suitability standard led to many advisors investing in funds they were personally interested in, sparking a need for change.

Physician Assisted Suicide and The Election

Published on: November 9, 2016 | by Ettinger Law Firm

Physician Assisted Suicide and The Election

Physician assisted suicide has continued to be a widely controversial, but popular topic across the country over the past decade. With the presidential election coming to a close very soon, the future of physician assisted suicide, or dying with dignity, may become a more widely spread practice, legal medical practice available to those terminally ill patients. Thus far, The Death with Dignity Act, or a similar version, has been passed in Oregon, Washington, Vermont, California and Montana.

California recently passed the California End of Life Option Act in June of 2016, after years of deliberation, voting and criticism, Governor Jerry Brown ultimately signed the bill into effect in the fall of 2015. Many families are relieved that this may become an option for a terminally ill loved one. What is different about death under this Act, is that it is no longer viewed as suicide, and will legally allow loved ones to retain what their terminally ill family member has designated for them after their passing.

How to Properly Choose a Caregiver For your Loved One

Published on: November 5, 2016 | by Ettinger Law Firm

There comes a time when difficult conversations must be had with an elderly loved one in your life that requires a caregiver, but is not receptive to the idea. These conversations can initially be overwhelming for both the loved one and the elderly person, as they start to make a plan about how their lives will change, but as so many Americans continue to live longer with a number of chronic health problems, enlisting the help of a caregiver is a very realistic and responsible choice in order to ensure an elderly person is well taken care of. This also tends to be the best option for those families who are not geographically close enough to care for their loved one full time but see the need for change in the current situation.

In determining the needs of your loved one, continue the dialogue to assess what is most important to both of the parties, such as, full time versus part time care, what daily activities the individual partakes in and what kind of assistance is needed with those, if any, as well as whether overnight care or meal assistance is needed, among many other factors.

Once needs have been determined, it is important to build a pool of applicants to interview. Caregivers build a very personal and intimate relationship with those they care for, thus, it is critical that the individual not only approves of the caregiver, but shares something in common and can trust that person.

Trust Settlement & Disbursement after Beneficiary Death

Published on: November 2, 2016 | by Ettinger Law Firm

Upon the happening of an event described in a trust, whether it is a term being met, a beneficiary reaching a certain age, or the death of a certain party, the trustee must settle the trust, terminating it and distributing the assets out. While sometimes these terminating events can be easily foreseen and planned for accordingly, such as a beneficiary reaching age attainment, other events may be more sudden. These sudden events, such as an unforeseen death, can cause particular difficulty for those administering the trust as well as those seeking the trust continue to pay for certain expenses, including funeral costs.

When the event occurs, the trustee, in most states, must either file paperwork with the court or notify all the of the beneficiaries of the event, the trust’s consequential termination, and next steps for distribution. This release is required in order for the trust to distribute out and for the trustee’s duties to terminate. The trustee’s acknowledgement of the event insulates the trustee in the event that the estate or any of its beneficiaries attempt to bring legal action against the trustee.

What many beneficiaries of a trust do not realize is that upon the happening of the event, as of that day, the trust going forward can no longer allocate any assets to pay costs that may have formerly been taken care of by the trust, such as real estate taxes or various bills. The trust must act as if it is then frozen in time in order to preserve what will eventually be distributed out. While it can be inconvenient in terms of timing as well as financially, the trustee can no longer pay out or make distributions on behalf of the trust because it fails to exist and the will of the grantor is no longer known.

Arbitration and Nursing Home Contracts

Published on: October 12, 2016 | by Ettinger Law Firm

In continued efforts to protect the rights of elders, The Department of Health and Human Services has passed a rule to further ensure that elders are not taken advantage of and have the right to decide whether they seek a trial or alternative dispute resolution measures when bringing a legal claim. Currently, a majority of nursing home contracts contain arbitration clauses in the event that a residents bring a claim against the nursing home for incidents such as safety, quality of care, sexual harassment, elder abuse, as well as wrongful death.

Arbitration is a method of alternative dispute resolution that is used as a way to settle a legal claim instead of using litigation. Arbitration involves both parties and a third party neutral arbitrator, who listens to both sides present their case, similar to a judge, and renders a decision after both sides are heard. While arbitration can be a very useful and effective legal tool, the implementation of mandatory arbitration has left room for abuse of the system and injustice for residents and their families who seek legal recourse when bringing their claim. One benefit of arbitration is that it is also a private process; unlike legal proceedings, arbitration proceedings and their rulings will not be made public record, which makes it more difficult to measure rates concerning legal claims brought by elders against nursing homes.

Currently, there are roughly 1.5 million elders in nursing homes who are said to be affected as a result of this rule change, and this number will continue to grow. There may be some confusion regarding the applicability of this new rule however; the rule will only apply to new nursing home contracts that are entered into going forward. Those nursing home contracts already existing that contain a mandatory arbitration clause will be enforceable under the Federal Arbitration Act, according to the Center for Medicare & Medicaid Services. Additionally, a nursing home and potential resident can enter into a contract for arbitration if they wish, but it will not be mandatory in their contract.

The Emergency Preparedness Rule

Published on: September 29, 2016 | by Ettinger Law Firm

The Centers for Medicare and Medicaid Services finalized a rule recently in light of the most recent natural disasters in Louisiana that compromised the safety and well being of many Medicare and Medicaid beneficiaries throughout the affected area. Unfortunately, this rule came as a direct response not only to the devastating natural disasters we have experienced within the last decade, but the man made disasters as well, including terrorist attacks and health care scares. The rule was established in order to provider coordination for federal, estate, tribal, regional and local systems, that will now be required to comply with a unified system of emergency preparedness.

The need for additional support was realized when several patients who received treatment covered under Medicare or Medicaid were not able to obtain their care in light of the disaster, which furthered their need thereafter for additional care. Some of the organizations that provide care have complied with other emergency preparedness measures in order to receive accreditation, many residential mental health centers do not have a plan established, leaving a very vulnerable population without help in times of need.

In an effort to individualize emergency preparedness requirements, the new rules will apply to all 17 provider types, but will be different for each in order to receive certification. In order to comply with the rules, an annual training program will be implemented in order to ensure compliance and staff will be subject to drills and exercises to demonstrate their knowledge of the emergency rules.

End of Life Counseling and Medicare

Published on: September 25, 2016 | by Ettinger Law Firm

Medicare was established by the federal government as a way to provide health insurance for people 65 years old and above, as well as younger people with disabilities. This program provides coverage through a variety of different plans for different services, such as skilled nursing home care, hospice care, doctor visits, outpatient care, as well as prescription drug services. Depending on the plan covered under, Medicare will pay for a specific amount of counseling services, which now will also include end of life counseling services.

Roughly 25% of Medicare spending is done for beneficiaries in their last year of life, and with the largest number of older adults turning 65 years old a day in United States history, end of life planning is more important than ever. While many doctors consult their patients about their wishes as they near closer to the end of their life, Medicare now will cover end of life care and advance care planning. Supporters of the change think that this will now allow doctors and other medical professionals to spend the time necessary with the patient to make these advance plans and have important conversations, since they are able to also bill for that time.

Currently only 17% of adults say they have had end of life discussions with their doctor or health care provider, but majority said they would want to have one. As of January 1, 2016, the Center for Medicare and Medicaid Services regulations for advance care planning will be in effect and directly cover costs instead of partially reimbursing any planning discussed. It will be billed to Medicare at $85 for the first 30 minutes to meet regarding explanation of advance directives and standard forms, and $75 for every 30 minutes thereafter. Medicare is currently working to establish a national final fee schedule for the counseling, and expects the Medicare administrative contractors to assist with that process for claims.

Back to the Basics – The Notice Act

Published on: September 14, 2016 | by Ettinger Law Firm

Rising Medical Bills

Experiencing a life threatening accident or injury is one of the scariest and most confusing times in a person’s life, but what further complicates these emotional times are the staggering medical bills received after, without warning. In an effort to combat receiving these unexpectedly high bills and further open communication between hospital and patient, The NOTICE, or Notice of Observation of Treatment and Implication for Care Eligibility, Act will change the way patients are notified about potential costs incurred.

Starting in August 2016, this Act requires that hospitals throughout the country notify a patient about their status as either ‘inpatient’ or ‘observation’ status. When classified as an inpatient, Medicare will cover all, or a substantial amount, of the costs of medical bills incurred by the patient if they are covered under it. However, if the patient is classified as being under observation, Medicare may no longer be responsible for the bills incurred and the out of pocket costs fall on the patient, which has commonly been unbeknownst to the patient until release or weeks later when the bill is received. In order for an elder to receive care at a nursing home following a hospital visit, they must have spent three days in a hospital under inpatient status.

Understanding the Law – Real Estate Investment Trusts

Published on: September 4, 2016 | by Ettinger Law Firm

Real Estate Investment Trusts are an investment tool that allows an interested party the ability to invest in commercial real estate by buying a specific portion or interest of property. A Real Estate Investment Trust, or REIT, is a company that owns and also finances income-producing commercial real estate, generally for the purpose of investment and resale.

Many people who seek to invest their income and build a diverse portfolio look to add real estate due to its income producing potential. This investment tool allows an investor to own a share in several properties without having to front the major costs of purchasing an office building, apartment complex, industrial warehouse, or shopping plaza.

Why Add a REIT to your Portfolio?

Private Equity and PACE

Published on: September 1, 2016 | by Ettinger Law Firm

Providing reasonable care for the rising number of senior citizens continues to be issue of concern for our health care system. What constitutes providing adequate care differs depending on the situation; many senior citizens have expressed concern regarding their ability to stay in their homes and receive care versus moving to a nursing home in order to receive adequate health care under Medicare. In response to this issue, Medicare enacted a program that will pay to keep elderly and disabled citizens out of nursing homes by providing in home care specialist teams to treat the patient.

Program for All Inclusive Care

PACE, or the Program for All Inclusive Care, is a program for elderly adults who seek comprehensive medical and social services, wish to stay in their community, and in most situations are eligible for both Medicaid and Medicare. To be eligible, the individual must be 55 years of age or older, live in the area of a PACE organization, be eligible for nursing home care, and be able to live safely within the community. PACE is program administered by Medicare, but must be elected at the state level to provide the optional benefit to Medicaid beneficiaries. Once elected, the program will be the only source of Medicare and Medicaid benefits for the beneficiary, but is much more comprehensive.