Elder Law

PERSONAL INJURY AND MEDICAID: WHY WOULD STATE GET INVOLVED IN PERSONAL INJURY SETTLEMENT?

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

It is a fortunate state of affairs that it is happening less and less, with the requirement for every American obtain health insurance under the Affordable Care Act (often called Obamacare), that some people do not have proper health insurance coverage for a catastrophic injury. It is still unfortunate that is happens often enough. As such, either a loved one or when you are well enough retain an attorney in a personal injury suit against the offending party or entity for your past pain and suffering, future anticipated pain and suffering and future medical bills.

Most personal injury attorneys know that any settlement or jury (or even judge if the matter proceeded to trial without a jury) award should earmark or indicate the amount of the award or settlement for your future medical expenses because the government will get involved and assert a lien over any financial award for medical expenses. This overall schema enables you to effectuate a meaningful change in your life, by satisfying the state’s obligation to recoup its medical costs and leaves some money to you to live at a level above the basic minimum that medicaid insures.

It must be asked, however, what of the cases where there is no designation of the settlement or verdict that speaks to the amount awarded for medical expenses and what is pain and suffering or other line awards. Both Congress and the Federal Supreme Court dealt with these issues. Congress enacted 42 U.S.C. § 1396p(a)(1) as part of the Social Security Act that prohibits the government from asserting a medicaid lien against the property of a medicaid recipient, except under certain clearly delineated circumstances. One of those delineated circumstances is when the state may seek recovery for “any medical assistance correctly paid”. The Supreme Court dealt with this issue in 2013, in the case of Wos v. E.M.A. when it ruled that a state may only asset a medicaid lien against that portion of a personal injury settlement or verdict that is specifically designated for medical expenses.

PRE-PAID FUNERAL S IN NEW YORK

Published on: February 26, 2016 | by Ettinger Law Firm

NEW YORK PROTECTIONS

Many people are leary about purchasing a pre-paid funeral. This blog discussed some of the issues common to prepaid funerals. In 2002, the American Association of Retired People (AARP) issued a consumer “scam alert” warning people to preplan but not prepay for their funerals. Indeed, often this is good advice. What really should be discussed and should be planned for and paid for is an irrevocable prepaid funeral fund.

It will not render a person ineligible for Medicaid, as Medicaid treats irrevocable trusts as an exempt asset. Some prepaid funeral plans incur account maintenance fees or various other unforeseen problems could result from prepaying for a funeral. It is important to note, however, that New York has some of the strongest consumer protection laws in place for prepaid funerals. Most specifically, the law requires that the money be put into an individual account – as opposed to an account for all of the individuals who prepay for their funeral through a particular funeral director or funeral home – that is both interest bearing and insured, which remains the property of the consumer. If the funds are in a revocable account, the consumer may request a full refund at any time. The funeral home or funeral director also ensures that the consumer receives a notice of what bank the funds are held in and as well as a statement of any interested earned.

ADULT PROTECTIVE SERVICES VOLUNTARY DRAFT GUIDELINES

Published on: February 24, 2016 | by Ettinger Law Firm

UNIFORMITY OF LAWS

Many laws across the country are the result of non-profit civic minded legal entities. The American Legal Institute is perhaps the most well known of these groups. Not all laws are “laws” in the traditional sense. Some are written by these legal entities and the various states adopt them as compacts, which are in essence legal contracts between states as to how they will handle intra-state legal problems. For example, there is a drivers compact that enables one state to recognize and punish out of state drivers for driver under the influence infractions.

For example, New Jersey driver receives a driving under the influence infraction in New York. The worst thing that New York can do is to revoke that driver’s right to operate a vehicle in New York state. Indeed this does happen. In addition, under the driver’s compact, New York also forwards this conviction to New Jersey and New Jersey then punishes the driver in accordance with New Jersey law, thereby suspending his/her driving privileges. Congress has never weighed in on this issue because there was no need to. Almost every state partakes in the Driver’s compact. States also cooperate with the placement of foster children across state lines to relatives or family friends via a compact. Once again, Congress has not created any statutory framework for the states. At the current moment there is some general agreement between the states when it comes to the laws that deal with Adult Protective Services (“APS”). The key term is that there is “general agreement.”

GERIATRIC CARE MANAGER

Published on: February 18, 2016 | by Ettinger Law Firm

DISTANCE AND PROFESSIONALISM

The New York Times ran an article on December 23, 2015 discussing the distance that the average American lives from their mother. As revealed in longitudinal study published in 2010, half of Americans live 18 miles or less from their their mother. As shown in the graph plotting these distances, the half of Americans who live less than 18 miles usually live extremely close. 40 percent live five miles or less. It seems as if the 40 percent and five mile mark is where the divergence occurs. 55 percent live less than 28, 60 percent live at least 47 miles or less, 65 percent live 80 miles or less and 70 percent live 129 miles. Depending on whether you live in the suburbs, the far suburbs, rural America or in the inner city with a reliable and timely public transportation system, these percentages and distances mean different things. 128 miles is not insurmountable and is actually a common commute if you live in Philadelphia and have to commute to Manhattan.

If you live in Southern New Jersey and have to battle the daily commute to Manhattan the same 128 miles is entirely different. Other factors also play out in your ability to see your parents as often as you want or need to. If you are a busy emergency room physician, working 24 hour shifts, you may not be able to see them anywhere near as often as need be or as you want. If your parents rely on you for basic assistance with medical issues or long term care decision making and you cannot dedicate the time to help them, you may want to consider a relatively under utilized service in the form of a geriatric care manager. In addition to assisting their clients and families make informed decisions, they are professionals who almost always work in the community and have a better working knowledge of different issues that may crop up with one provider or facility but not another.

SPECIAL NEEDS, THIRD PARTY AND SELF SETTLED TRUSTS – WHATS WITH ALL THE NAMES?

Published on: February 17, 2016 | by Ettinger Law Firm

LEGAL DISTINCTIONS THAT MATTER

When a person applies for Medicaid eligibility there are many pitfalls that an unsuspecting or unsophisticated applicant can run afoul of. To help them retain the benefit of certain monies that they would normally have access to third parties or the applicant themselves can create a special needs trust to help keep the public benefits and still benefit from the money in the trust. The various different trusts have different legal requirements that must be met to qualify as that type of trusts.

Moreover, different trusts accomplish different goals and yet other types of trusts exist that have nothing to do with Medicaid or other public entitlement program eligibility but help to reduce tax liability. Some trusts accomplish two tasks, such as a third party special needs trusts, which allow seniors to live a relatively modest and respectable life and qualify for Medicaid at the same time. While other types of trusts only satisfy just one legal goal, such as a grantor retained annuity trust, which allows a person to make a gift of an asset that will likely appreciate rather quickly, but incur no gift tax liability. Finally, there are other types of trusts that outlive their utility, such as pooled trusts.

PLANNING FOR YOUR SPECIAL NEEDS LOVED ONES

Published on: February 15, 2016 | by Ettinger Law Firm

CREATE A GLOBAL PLAN TO GO INTO EFFECT TODAY

If you are a parent, stepparent, grandparent or caretaker of a special needs child you need to prepare for the day when you are no longer able to physically and financially care for your special needs loved one. While it is not suggested that you stop caring for the special needs loved one today, there is no better time than to start your planning than now and to actually try it out, so as to cure any unanticipated issues now while you still have the mental, emotional and financial wherewithal. First on the list of priorities is to find a standby guardian who can step in and care for your loved one without complication, so as to insure a seamless transition. Better still is to have two caretakers who can assume responsibility for the day to day needs of your special needs loved one. This blog has discussed the wisdom and utility of a standby guardian.

While it is essential for you to discuss these plans with any standby guardian and alternate standby guardian, as any legal responsibility to assume guardianship requires the consent of the standby guardian, it is always best to discuss these decisions with your loved one. Many autistic children do not deal with change very well. As such, having the standby guardian come in to run the show and do what you do on a daily basis is best. The same applies for any alternate standby guardian. It would also be best to discreetly disclose your financial planning, income and expenses with the standby guardian as well as any alternate. Any monies coming in from public agencies or even benevolent societies as well as a review of key service providers would be necessary for the standby guardian to understand if you become incapacitated, disabled or otherwise unable to provide the same level of care that you currently provide for your special needs loved one.

ADULT GUARDIANSHIPS, RESTORING RIGHTS

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

GUARDIANSHIP CAN BE VACATED

As this blog has discussed in some detail in the past, Adult Guardianship is a complicated area of the law, dealing with many sensitive issues of personal power, ability and basic competence. On a very basic level, guardianship is a judgment that is entered by a Court, which allows one person the the legal right to exercise decision making over another. The basic medical reality is that once competency is gone, an individual often does not regain that capacity back.

As such, when a Judgment of Guardianship is entered is often permanent. There are plenty of cases to show that this is indeed not so common so as to consider it an inalterable rule. The law recognizes this fact and allows for a judgment of guardianship to be vacated if and when a person regains their facilities. Under current New York law, a guardianship Judgment may be entered upon the consent of the ward (protected party), or, if not by consent, then by clear and convincing evidence that someone (either the potential ward or a third party) will likely suffer harm because :

FEDERAL TAX EXEMPTION FOR ELDERLY DEPENDENTS

Published on: February 3, 2016 | by Ettinger Law Firm

EVERY LITTLE BIT COUNTS

For those of among us who care for elderly parents or relatives, you do it without expectation of compensation or reimbursement. You dedicate time, money, resources and do it day in and day out and will continue to do so without concern for recompense. That does not mean, however, that you would not take any financial reimbursement from outside companies or or tax exemptions from the IRS. Most people do not realize that caring for an elderly parent or relative comes with some fairly generous tax benefits. There are some very important and precise legal definitions that need to be satisfied before you can properly claim your elderly relative dependent.

TAX LAW DEFINITIONS AS QUALIFYING DEPENDENT

VETERANS ADMINISTRATION PENSIONS – AID AND ATTENDANCE PENSION

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

The Veterans Administration has a program that allows for a large subset of the veterans population to qualify for certain benefits that pay for costs associated with caring for a veteran or their spouse. This Aid and Attendance pension may be in addition to any pension that the service member and/or their spouse may already receive. The Housebound pension also covers certain costs associated the care and attendance to the veteran or their spouse when they are primarily confined to their residence. While a veteran or their spouse may already receive a pension, as well as these additional benefits, one cannot receive both the Aid and Attendance benefits as well as the Housebound benefits. It is important to note at the outset the difference between a pension and compensation.

Compensation is a sum of money that the veteran receives, tax free, for disabilities that the veteran suffered in relation to their time as a service member. The compensation is meant to make up for any loss of income due to the disability. A Pension is meant to provide additional monies to low income or disabled veterans who served during a period of war, or in a war zone. Both of these benefits are distinct from a military retirement. The benefits under these Veterans Administration programs have been in existence for over 60 years, yet many Veterans Administration officials and Veterans Administration attorneys were unaware of these benefits until recently.

WHAT IS COVERED

FILE AND SUSPEND STRATEGY IS NO MORE – NEED TO REASSESS PLANS

Published on: January 26, 2016 | by Ettinger Law Firm

For over a decade it was sound and perfectly legal advice for financial advisors and elder law practitioners to advise their married clients to file and suspend their social security benefits, thereby maximizing their financial returns. The basic advice was to advise a married couple to have the spouse who earned more through his/her lifetime to file for social security benefits at the full retirement age. After the higher earning spouse filed, the lower earning spouse would automatically be eligible for spousal benefits and would therefore file for spousal benefits. Once the lower earning spouse started to receive benefits, he/she would get a higher monthly benefit amount as the lower earning spouse would piggyback on the higher earnings of their spouse.

At that time, the higher earning spouse would suspend their benefits and work, thereby increasing their social security benefits even more, so that way when they hit the maximum benefit age now set at 70 they would have a higher monthly benefit amount. When the higher earning spouse hit the maximum benefit age, they would have maxed out their social security earnings and have already benefitted from a spouse who collected social security benefits in the meantime. It all comes down to dollars and cents. Someone has to crunch the numbers to determine if it made sense for the couple to do it, although for the majority of couples it did make sense.

The question also had to be asked, when was the optimum time? Again, someone had to crunch the numbers to find the sweet spot. There was even a second strategy for those whom it did not make sense to do so. The second approach was for both spouses to file a “restricted application”, whereby each spouse would only receive their spousal benefits. This let them increase their own earnings, so that way when they reach seventy, they have maximized their social security benefits. In either event, the couple would be able to benefit from an additional several thousands of dollars.