A Massachusetts appeals court holds that a Medicaid applicant's care agreement was not for fair market value, but the state needs to determine whether the applicant intended to receive fair market value. Gauthier v. Director of the Office of Medicaid (Mass. App. Ct., No. 10–P–1585, Nov. 10, 2011).

Mary Gauthier moved in with her son after being diagnosed with Alzheimer's disease. Ms. Gauthier entered into a care agreement with her son in which she agreed to pay him a lump sum of $182,000 in exchange for care services, which included the building of a handicapped-accessible bedroom and bathroom. The care agreement provided that the son could terminate the agreement and retain the money if Ms. Gauthier entered a nursing home or died. Two years after the transfer, Ms. Gauthier entered a nursing home and applied for Medicaid.

The state denied Ms. Gauthier Medicaid benefits due to the transfer. The hearing officer upheld the denial, finding that the care agreement had no fair market value because of the vagueness of the care agreement, the son's ability to terminate the agreement, and the fact that Ms. Gauthier did not receive an ownership interest in the house. The hearing officer found Ms. Gauthier ineligible for a period of 682 days, by dividing the $182,000 transfer by the $267 daily cost of a nursing home in Massachusetts. The trial court upheld the hearing officer's decision, and Ms. Gauthier appealed.

The Massachusetts Court of Appeals affirms in part, holding that the care agreement was not for fair market value and there was evidence the transfer was designed to shift the cost of caring for Ms. Gauthier to the state. However, the court remands the case because before the state can impose a penalty period, the state is required to determine whether Ms. Gauthier "intended" to receive fair-market value or other valuable consideration in exchange for the transfer. In addition, the court rules that in calculating the ineligibility period, the state is required to calculate the difference between the transferred asset and the value Ms. Gauthier received for asset.

Source: http://attorney.elderlawanswers.com/home/news/id/9548

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Gladys became a drug addict at the age of 82 when the pain of arthritis got to be too much for her and she became dependent on opiates to get through the day and to sleep at night.

Frank became a dangerous, problem drinker at 66 after he retired from his job as a maintenance man in a local school. Every day he drove to a bar where he hung out with a few buddies and drank a few too many beers before he drove home.

Samuel grew up during the era of drugs, sex and rock and roll. Throughout his adult life, he smoked marijuana after work without problems at work or at home. After he retired at 65 he smoked more often and getting high began to interfere with the life he had hoped for when he retired.

For most of her adult life, Joan had had two or three glasses of wine with dinner. In her mid-60s her physical tolerance for alcohol diminished. She drank no more than usual, but by the second glass she began to slur her words and to find it hard to think clearly. She frequently fell asleep right after dinner.

These are just a few of the faces of substance abuse or misuse among older adults. They are not the images that ordinarily come to mind when we think of substance abuse, and this is a major reason why these problems often go undetected in elders. Of course, there are older adults who are alcoholics and/or addicted to illegal drugs such as heroin, but fewer and fewer as people age, in part because so many people addicted to alcohol or drugs die prematurely and in part because some survivors turn their lives around.

For older adults, drinking too much and misusing medications are the major substance use problems, affecting as many as 20 percent of them (1). They are particularly vulnerable to the mental and physical effects of alcohol and drugs because of physiological and cognitive changes that take place with age. And, even if they are not addicted to alcohol or illegal substances, they are at risk for serious problems including:

• Adverse drug reactions, including fatal overdoses,
• Accidents -- including falls and traffic accidents,
• Exacerbation of health problems,
• Social isolation,
• Sleep disturbances,
• Inactivity,
• Loss of cognitive capacity and
• Suicide -- which is more likely among older adults than any other age group.

In general, substance abuse and misuse vastly limit the potential to live well in old age.

During the elder boom there will be tremendous growth of the number of older adults with substance use problems, in part because of the growth of the population of older adults, but also because baby boomers use substances -- including illegal substances -- much more commonly than their parents' generation.

For example, a study done by the U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) projects the growth of people 60 or over who need substance abuse treatment from about 700,000 in 2000 to about 2,300,000 in 2020 (2). Recent surveys (3) confirm that this is already happening, with marked growth of the use of marijuana.

In addition, the CDC recently released a report projecting a vast increase in addiction to prescription painkillers and in deaths due to overdoses, which already kill more Americans than heroin and cocaine combined (4).

Will you, a member of your family, or a close friend be among the older adults with serious substance use problems? Here are a few signs that should cause concern (5).

• Getting unusually high without an increase in use
• Use of alcohol or drugs to sleep and then finding it difficult to get going in the morning
• Reliance on opiates to manage pain in doses that exceed a doctor's prescription
• Going from doctor to doctor to get additional prescriptions
• Using over-the-counter drugs in amounts or in combinations of medicines that are not recommended
• Cognitive or memory impairments, difficulty concentrating, or confusion
• Slurred speech
• Increased isolation
• Difficulty participating in ordinary activities
• Weight loss and/or poor nutrition
• Increased fatigue and/or weakness
• Poor personal hygiene
• Unusual restlessness or agitation
• Persistent irritability or altered mood
• Balance problems and/or frequent falls

These symptoms can, of course, have causes other than substance abuse or misuse, but if a person is using alcohol or other drugs and has these symptoms, substance use may be a major cause.

You may be able to recognize substance use problems in yourself or a friend or family member. You may be able to cut back or help someone to cut back. But many people need professional help. Talk frankly with your physician. If you don't know where to turn for help, call 1-800-273-TALK. This is the National Suicide Prevention Lifeline, and it can connect you with mental health or substance abuse services near your home.

Source: http://www.huffingtonpost.com/michael-friedman-lmsw/eleder-substance-abuse-_b_1105104.html

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A long-term care insurance agent is warning that many carriers either have already implemented significant benefit reductions and price hikes, or will do so soon.  He suggests that consumers may want to take advantage of current offerings while they are still available.

Those who take advantage of the offerings in place today "will end up owning LTC plans with much richer benefits, and at a significantly lower cost than what will be available by early 2012," Mark Baron, an independent agent in Andover, Massachusetts, writes in his newsletter, Long Term Care Matters. "Virtually every major carrier has, or is about to introduce a new plan with reduced benefits, at higher costs. Some carriers have left, or are intending to leave the market altogether."

Baron says one popular option available today that will disappear is the indemnity benefit, in which policyholders receive their full daily benefit amount, regardless of the actual bill.  This gives them the freedom to use the benefit amount as they see fit.  Baron says only two major insurers still offer this more expensive option, and both will be dropping it soon.  Berkshire Life, a subsidiary of Guardian Life, is dropping it in December, and Baron's sources tell him Mass Mutual is planning to do the same in early 2012.

In addition, Baron says Mutual of Omaha will likely be seeking a higher pricing structure after January 1 for new buyers.

Source: http://attorney.elderlawanswers.com/home/news/id/9587

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Jan 13, 2012 01:52:34am

Below, in chronological order, is our annual roundup of the top 10 elder law decisions for the past year, as measured by the number of readers of ElderLawAnswers' Weekly and Monthly e-letters who "clicked through" to the full story.

At least one of the cases, In Re: Estate of Perry, was argued by an ElderLawAnswers member firm, and another that just missed the Top 10 list involved another ElderLawAnswers firm).   Also involved in that case was star Medicaid litigator Rene Reixach, who had a busy year – two of his cases (Sable and Fortmann, below) made the Top 10 list and another came close (Behning).  As usual, our list does not include several cases involving attorney behavior, most particularly this unusual case in which the District of Columbia Court of Appeals suspended, rather than disbarred, an attorney who intentionally misappropriated a nursing home resident's funds in order to qualify the resident for Medicaid.

1. Medicaid Applicant's Penalty Period Does Not Begin Until Returned Assets Are Spent Down

The U.S. Court of Appeals, Third Circuit, rules that a New Jersey Medicaid applicant who transferred assets and then had some of the transfers returned cannot get credit toward her penalty period for the time before the transfers were returned that she was resource-eligible. Marino v. Velez (U.S. Ct. App., 3rd Cir., No. 10-2324, Jan. 10, 2011). To read the full summary, click here.

2. State Cannot Recover Assets That Were Transferred Before Medicaid Recipient Died

In a case pursued by ElderLawAnswers member attorney Peter C. Sisson, an Idaho district court rules that the state cannot recover assets from the estate of a Medicaid recipient's spouse that were transferred to the spouse before the Medicaid recipient died. In Re: Estate of Perry (Idaho Dist. Ct., 4th Dist., No. CV-IE-2009-05214, March 16, 2011). To read the full ummary, click here.

3. Federal Court Rules Ahlborn Does Not Bar Medicaid Recovery From Future Medical Expenses

A federal district court rules that a state Medicaid agency may recover the cost of a beneficiary's medical care from the portion of her personal injury settlement that was allocated to medical expenses, regardless of whether the funds were allocated to past or future medical care. Perez v. Henneberry (D. Colo., No. 09-cv-01681-WJM-MEH, April 26, 2011). To read the full summary, click here.

4. Court Upholds Nursing Home Resident's Eviction Prior to Resolution of Medicaid Appeal

A Kentucky appeals court holds that a nursing home may evict a resident for nonpayment despite a pending Medicaid appeal. King v. Butler Rest Home, Inc. (Ky. Ct. App., No. 2010-CA-001467-MR, June 17, 2011). To read the full summary, click here.

5. Payments to Caregivers of Dementia Patient Are Deductible Medical Expenses

The U.S. Tax Court rules that payments to caregivers of a dementia patient are deductible medical expenses, even though the caregivers were not licensed health care providers. Estate of Lillian Baral (U.S. Tax Ct., No. 3618-10, July 5, 2011). To read the full summary, click here.

6. Third Circuit Affirms That N.J. May Count Promissory Notes As Available Resources

In a long-running case that has bounced back and forth between two federal courts, the Third Circuit Court of Appeals rules that New Jersey's Medicaid agency may analyze promissory notes as trust-like devices and count the notes as available resources. Sable v. Velez (U.S. Ct. App., 3rd Cir., No. 10-4647, July 12, 2011). To read the full summary, click here.

7. Transfer of Medicaid Applicant's House to Son Falls Within Caregiver Child Exception

A New Jersey appeals court rules that the transfer of a Medicaid applicant's house to her caregiver son is not subject to a Medicaid penalty period because it falls within the caregiver child exception. V.P. v. Dept. of Human Services (N.J. Sup. Ct., App. Div., No. A-2362-09T1, Sept. 2, 2011). To read the full summary, click here.

8. U.S. Court Rules Connecticut Likely Cannot Refuse Spousal Refusal Doctrine

Ruling that a state statute violates federal Medicaid law, a federal district court grants a preliminary injunction preventing Connecticut from denying Medicaid benefits to an applicant seeking to disregard his spouse's assets using the doctrine of spousal refusal.  Fortmann v. Starkowski (D. Ct., No 3:10cv1562 (JBA), Sept. 28, 2011). To read the full summary, click here.

9. Medicaid Applicant's Transfer to Daughter Created Trust-Like Device

A federal district court rules that when a Medicaid applicant transferred money to her daughter with the intention that the daughter pay for her care during the resulting penalty period, she created a trust-like device, so the money is still an available resource. Pfeffer v. AHCCCS (U.S. Dist. Ct., D. Ariz., No. CV-11-0891-PHX-GMS, Sept. 29, 2011). To read the full summary, click here.

10. Irrevocable Trust Set Up by Medicaid Applicant's Children Is Available Asset

A Wisconsin appeals court rules that a Medicaid applicant who transferred funds to her children, who then put them in an irrevocable trust for her benefit, is ineligible for Medicaid because the trust is an available asset under state law, even though the transfer occurred 17 years before she applied for Medicaid. Hedlund v. Wisconsin Dept. of Health Services (Wis. Ct. App., No. 2010AP3070, Oct. 13, 2011). To read the full summary, click here.

Source: http://attorney.elderlawanswers.com/home/news/id/9657

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VANCOUVER— This year’s Top Ten Scams list focuses on how scammers can use misrepresentation to gain consumers’ trust.

“We are seeing trends towards spoofing well-known brands and ‘scams of the moment’ which capture people’s attention because the topic is in the public consciousness,” says Lynda Pasacreta, BBB President and CEO. “Scammers are capitalizing by using false pretences to get our attention and steal our trust.”

The following Top Ten Scams list, themed “Pay Attention to the Message,” is developed jointly by BBB, Consumer Protection BC, and BC Crime Prevention Association. In no specific order, here are the Top Ten Scams to be on the lookout for in 2012.

1. Brand Spoofing

Brand spoofing (aka phishing) is a general term for e-mail, text messages and websites fabricated and sent by criminals and designed to look like they come from well-known and trusted businesses, financial institutions and government agencies in an attempt to collect personal, financial and sensitive information. If the recipient follows the link provided and connects with the fraudulent website, any information entered into the data fields (account #, PIN, contact information, social insurance number etc.) could be recorded, collected and used for fraudulent purposes. Additionally, some variants of phishing scams make use of Trojan horses to infect recipient computers with malware.

QUICK TIP: If you receive these messages just delete them and do not click on any links, and hang up on callers you aren’t familiar with. Never give credit information online or over the phone unless you are sure of the identity of the caller. If you are a victim of ID theft, call your financial institutions to have them cancel your cards and re-issue new ones. Contact your local police and Canada’s main credit reporting agencies: TransUnion Canada at tuc.ca (1-800-663-9980) and Equifax Canada at equifax.ca (1-800-465-7166).

2. Advance Fee Loans

Consumers have reported losing substantial sums of money responding to advertisements that “guarantee” loans to people, often online. Consumers complete credit applications and are told the loan (from $5,000 to $100,000) has been approved and the promised funds will be received once a fee is paid. After payment, the loan is never received as promised.

QUICK TIP: It is illegal for a company to charge a fee in advance to obtain a loan, even if that fee is disguised as the first or last month’s payment. Watch for claims of “guaranteed” loans even if you have bad credit, no credit, or a bankruptcy, and demands that you wire or send money before you can have a loan offer confirmed in writing. Report any suspected fraudulent schemes to your local police and the Canadian Anti-Fraud Centre (CAFC) at 1 (888) 495-8501 or antifraudcentre-centreantifraude.ca

3. Gold Buying Schemes

When the BBB was created in 1912, the average price of gold was $18.93 per ounce (and it had been so for about 100 years before). In 2011, the price of gold soared, rapidly fluctuating and averaging over $1735 per ounce. Similar to gold rushes of the past, a strained economy and high demand for gold resulted in many consumers selling, trading and receiving unfair returns when cashing in their gold and jewellery.

QUICK TIP: Before cashing in on the gold rush it is important to do your research. When choosing an appraiser, find someone locally whom you know and trust. Know that the true price of gold may not be what you will be paid for every ounce of gold you own. Get multiple appraisals and compare prices before selling. Be sure that jewellery of differing karats is weighed and priced separately. Have jewels such as diamonds priced separately from the gold they are contained in.

4. Financial Elder Abuse

Financial elder abuse occurs when seniors’ pocketbooks are exploited by scammers who take advantage of a person’s vulnerabilities associated with age - like hearing loss, loneliness, physical limitations and impaired mental capacity. Common financial elder abuse frauds include tricking seniors into giving out private banking information; encouraging unnecessary home repair work, telemarketing and mail fraud; and swindles by family or friends that result in seniors giving up money, property, personal information and decision making capacity.

QUICK TIP: Most elder abuse happens to a senior by someone they know, such as a family member, friend or caregiver. Many victims do not even realize they have been taken advantage of. Signs a senior is being financially abused include: missing belongings, unusual activity in bank accounts, suspicious stories, sudden changes in Power of Attorney or Wills, bounced cheques and numerous unpaid bills. Report all incidents of financial elder abuse to your local police.

5. Power Saving Claims

The switch to Smart Meters in B.C. fostered a rise in false claims and deceptive ads by some scammers selling energy conservation devices. Consumers reported purchasing a number of power saving devices they claim did not work and that did not meet electrical safety standards.

QUICK TIP: BBB was created 100 years ago to put a stop to unethical, deceptive claims and advertising. The BBB Ad Review program seeks to help consumers and businesses identify untrue, deceptive, fraudulent and insincere statements. Protect yourself from deceptive advertising by doing your research before making a purchase. Always check out a company’s BBB Business Review (bbb.org) first and report deceptive advertising and business claims to your local BBB. If it sounds too good to be true, remember that it probably is.

6. Door-to-Door Sales

Each year a variety of unscrupulous door-to-door salespeople use high pressure sales tactics to frighten people into purchasing expensive, substandard - often unneeded products and services. Be wary of overly aggressive sales people selling everything from alarm systems to vacuums and air purifiers, as well as roofing, paving, window washing, painting, plumbing, heating, repair and landscaping services.

QUICK TIP: Don’t give in to high pressure sales tactics. If you feel threatened by an aggressive salesperson, ask them to leave your property. If they refuse, call the police. Before making any purchase, take the time to do your due diligence, getting the name and location of the company and ensuring all details and verbal promises are included in a contract. Door-to-door contracts are regulated by Consumer Protection BC. Complaints or questions? 1 (888) 564-9963 or www.consumerprotectionbc.ca

7. Virus Fixing Scheme

In the case of the alleged caller from Microsoft, he/she claim to be phoning about a serious problem with the person’s computer. The caller warns that if the problem is not solved, the computer will become unusable. In order to “fix” it, the computer owner is directed to a website and told to download a program, plus pay a fee for a subscription to this preventative service. The catch: there was never anything wrong with the computer, the caller is not working for Microsoft, and the owner has downloaded to their computer damaging malware and spyware.

QUICK TIP: Treat all unsolicited phone calls with skepticism. Check with the organization directly that the caller is claiming to be from, using the contact numbers found on their website. Do not provide any personal information to avoid identity theft. Never provide credit or debit card information for payment. Report any fraudulent activity to the Canadian Anti-Fraud Centre at 1 (888) 495-8501 or www.antifraudcentre.ca.

8. Fraudulent Locksmiths

Consumers reported “local locksmiths” advertising online using a local telephone number and local address, but when contacted, consumers are connected to a call centre in another city and there is no locksmith at the address listed in your area. Consumers who have hired these companies allege that they have been overcharged for products and services, received bad advice or poor workmanship, or have had difficulty contacting the business to correct problems.

QUICK TIP: Don’t just pick the first “local” company you find online. Confirm the company address and ask for the legal name of the business. When the locksmith arrives, ask for identification, a business card and their license. In BC, locksmiths are licensed through the Ministry of Public Safety & Solicitor General. Also make sure that they are insured, so you know costs will be covered should any damage be done to your personal property. Expect a legitimate locksmith to ask you for identification to confirm your identity as the homeowner. Check out their BBB Business Review (bbb.org).

9. Penny Auctions

Online ads, often designed to look like news reports, are cropping up on popular websites claiming that you can get great deals on iPads and other electronics with online penny auctions. Most commonly with a penny auction, users must set up an account and purchase bids with a credit or debit card; each individual bid may cost less than a dollar and are often sold in bundles of 100 or more. Every item has a countdown clock and as people bid, the cost of the item goes up incrementally and more time is added to the clock. Even if you don’t win the item, you still have to pay for the bids you placed which can add up over time.

QUICK TIP: Before providing any personal information or signing up for any “free” trial with a penny auction, read all of the fine print carefully on the website. Pay close attention to details on signup and annual fees, minimum bidding requirements, maximum prize amounts and how to get a refund. Know what you’re buying. Before bidding on an item, research how much it costs elsewhere and keep track of how much you’re spending on bids overall to see if you really are getting a good deal. Keep a close eye on your credit card for unexpected charges.

10. Anti-Social Network

Social networks like Facebook and Twitter are becoming more and more popular. Users are often subject to targeted advertising and direct messages, and scams of all colours use social networks to operate. Fraudulent work-at-home job offers are sent through Twitter “tweets” and Facebook messages, deceptive “free” trials are advertised, and “clickjacking” on Facebook convinces users to unknowingly post malicious links on their status updates.

Source: http://mbc.bbb.org/article/Better-Business-Bureau-announces-Top-Ten-Scams-for-2012-31733

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HAPPY NEW YEAR to all of my newsletter readers!

I hope everyone had a safe and enjoyable holiday season. However, don't forget when you are making your New Years Resolutions for this year...to include creating or updating your estate plan! Having the proper estate plan in place to avoid probate, avoid conservatorship and protect your home and assets if you want to apply for the VA Aid and Attendance benefits for veterans (or their spouses) or Medi-Cal long-term care benefits, your plan will provide much comfort and security to your spouse, family or loved ones should something happen to you.

Feel free to forward this email to your family and friends and let them know they can sign up for my FREE monthly newsletter just by visiting my website! Until next month...take care and be safe!

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Oct 14, 2011 04:01:29am

A Wisconsin appeals court rules that a Medicaid applicant who transferred funds to her children, who then put them in an irrevocable trust for her benefit, is ineligible for Medicaid because the trust is an available asset under state law, even though the transfer occurred 17 years before she applied for Medicaid. Hedlund v. Wisconsin Dept. of Health Services (Wis. Ct. App., No. 2010AP3070, Oct. 13, 2011).

In June 1991, Lucille Hedlund transferred all of her assets except one checking account to her children. On the same day, the children transferred the assets to an irrevocable trust to benefit Mrs. Hedlund. In June 2008, Mrs. Hedlund entered a nursing home and applied for Medicaid benefits.

The state found that the trust was an available asset under state law and denied her benefits. Under state law, a trust is available if the applicant's assets were used to fund the trust and if the trust was formed under the direction of the applicant. Mrs. Hedlund appealed the denial, arguing that her assets were not used to form the trust because she had transferred her assets to her children. The state denied the appeal, and the trial court affirmed. Mrs. Hedlund appealed.

The Wisconsin Court of Appeals affirms, holding that the trust is an available asset. The court rules that state law does not require the applicant to have legal ownership of the assets used to form the trust at the time the trust is formed. According to the court, the fact that Mrs. Hedlund's children put the transferred assets in a trust to benefit Mrs. Hedlund on the same day they were transferred created a reasonable inference that her children created the trust at her direction.

For the full text of this decision, go to: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=72249

Did you know that the ElderLawAnswers database now contains summaries of more than 1,800 fully searchable elder law decisions dating back to 1993? To search the database, click here http://www.elderlawanswers.com/resources/articlelist.asp?section=11.

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The cost of long-term care continues its upward climb, according to the 2011 MetLife Market Survey of Nursing Home, Assisted Living, Adult Day Services, and Home Care Costs. Private room nursing home rates rose 4.4 percent to $87,235 a year or $239 a day, while assisted living facility costs jumped 5.6 percent on average to $41,724 a year or $3,477 a month.

After leveling off last year, the cost of adult day care services went up by 4.5 percent to $70 per day. But the average cost of home health aides and homemaker/companion service rates remained unchanged at $21 and $19 per hour, respectively.

The survey also reports on the cost of a semi-private room in a nursing home, which also increased 4.4 percent to $214 a day, or $78,110 a year. The cost of a semi-private room in an Alzheimer's wing rose from an average of $75,190 to $81,030 annually.

Once again, the highest rates for a private nursing home room in 2011 were found in Alaska, where the average cost dropped slightly from $687 a day to $655 a day. The lowest rates were found in Louisiana (with the exception of Baton Rouge and the Shreveport area), at and average of $141 a day.

The cost of assisted living was the highest in the Washington, D.C., area, at $5,757 a month and the lowest in Arkansas (except for Little Rock) at $2,156 a month. Average home health care aide services ranged from a high of $34 an hour in Rochester, Minnesota, to $14 and hour in the Shreveport area of Louisana. Adult day care services were highest in Vermont at an average of $148 a day and lowest in the Montgomery, Alabama, area, at $29 a day, a $2 drop from 2010.

For the full 2011 report, including listings of average long-term care costs in selected cities, click here.

Source: http://www.elderlawanswers.com/resources/article.asp?id=9512§ion=4

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Hundreds of thousands of older people are being put at increased risk of death or developing dementia by taking combinations of common medicines to treat routine illnesses, according to a new study. Well-known brands of hay fever tablets, painkillers and sleeping pills pose a previously unknown threat to people’s health when taken together, British scientists claim.

http://www.telegraph.co.uk/health/healthnews/8594677/Fatal-cocktail-of-common-drugs-putting-elderly-at-risk.html

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