John L. Roberts
Certified Elder Law Attorney
John L. Roberts, J.D., is an Elder Law Attorney serving clients in Hampden County, MA. After practicing for 15 years, he confronted the challenges of family caregiving when his own father developed dementia. The experience transformed his practice, enabling him to help clients who are family caregivers from a place of true understanding.
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Question
What do you do to distract Alzheimer's patients from going out so often?
Agingcare.com has a section devoted to memory loss care, and the Alzheimer's Association has a helpful brochure that outlines how you... Agingcare.com has a section devoted to memory loss care, and the Alzheimer's Association has a helpful brochure that outlines how you can set up "Activities at Home" to match your loved one's level of capacity:
alz/national/documents/brochure_activities.pdf see more
alz/national/documents/brochure_activities.pdf see more
Question
My father-n-law is a WWII Veteran, but has never used any benefits, he now needs assisted care. Are there bene...
Basic information is at: https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm... Basic information is at:
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
https://www.agingcare.com/articles/veteran-aid-and-attendance-improved-pension-136402.htm
Information about coming changes to the Aid & Attendance eligibility is at:
https://www.agingcare.com/articles/va-aid-attendance-new-eligibility-rules-177294.htm
https://www.agingcare.com/articles/propsed-changes-to-aid-and-attendance-affect-caregiver-pay-178761.htm see more
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
https://www.agingcare.com/articles/veteran-aid-and-attendance-improved-pension-136402.htm
Information about coming changes to the Aid & Attendance eligibility is at:
https://www.agingcare.com/articles/va-aid-attendance-new-eligibility-rules-177294.htm
https://www.agingcare.com/articles/propsed-changes-to-aid-and-attendance-affect-caregiver-pay-178761.htm see more
Question
When Mom dies do I have to be appointed executrix to get her tax refund?
IRS Publication 559 explains that: If no personal representative has been appointed and if there is no surviving spouse, the person in... IRS Publication 559 explains that: If no personal representative has been appointed and if there is no surviving spouse, the person in charge of the decedent's property must file and sign the [decedent's final income tax] return as “personal representative.”
https://www.irs.gov/pub/irs-pdf/p559.pdf
There is a line on the Form 1040 that allows for direct deposit of income tax refunds.
Turbo Tax has a discussion on "Death in the Family."
IRS Form 1310 asks whether you will distribute the income tax refund according to the laws of your state:
https://www.irs.gov/pub/irs-pdf/f1310.pdf see more
https://www.irs.gov/pub/irs-pdf/p559.pdf
There is a line on the Form 1040 that allows for direct deposit of income tax refunds.
Turbo Tax has a discussion on "Death in the Family."
IRS Form 1310 asks whether you will distribute the income tax refund according to the laws of your state:
https://www.irs.gov/pub/irs-pdf/f1310.pdf see more
Question
How can I set up the child caregiver exemption?
The caregiver child exception allows a person who applies for Medicaid nursing home coverage to make a penalty free transfer of their house... The caregiver child exception allows a person who applies for Medicaid nursing home coverage to make a penalty free transfer of their house to a child who has taken care of them in the home.
42 U.S.C. 1396p says that:
An individual person won't be ineligible for medical assistance if he or she transfers a home to a son or daughter of such individual who was residing in such individual’s home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who (as determined by your State's Medicaid agency) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility.
www.ssa.gov/OP_Home/ssact/title19/1917.htm
The key is to make sure your mother's doctor is aware that her daughter is living in the home and making it possible for your mother to avoid a nursing home admission. After at least 2 years of this valuable care service provided by the daughter, a letter from the physician should convince the Medicaid case worker that the mother qualifies for the Caregiver Exception, allowing her to transfer the house to the daughter.
It’s always interesting to read the issues that other Agingcare.com community members see in each question. Some community members mentioned income tax issues in answering the question about transferring the house to the caregiver child. Their concerns may be taken care of if the caregiver child becomes the home owner and continues living in the house and decides to sell it after two years. The Principal Residence Exclusion is an income tax law that saves people from paying a capital gains tax on the sale of their home.
www.law.cornell.edu/uscode/text/26/121 see more
42 U.S.C. 1396p says that:
An individual person won't be ineligible for medical assistance if he or she transfers a home to a son or daughter of such individual who was residing in such individual’s home for a period of at least two years immediately before the date the individual becomes an institutionalized individual, and who (as determined by your State's Medicaid agency) provided care to such individual which permitted such individual to reside at home rather than in such an institution or facility.
www.ssa.gov/OP_Home/ssact/title19/1917.htm
The key is to make sure your mother's doctor is aware that her daughter is living in the home and making it possible for your mother to avoid a nursing home admission. After at least 2 years of this valuable care service provided by the daughter, a letter from the physician should convince the Medicaid case worker that the mother qualifies for the Caregiver Exception, allowing her to transfer the house to the daughter.
It’s always interesting to read the issues that other Agingcare.com community members see in each question. Some community members mentioned income tax issues in answering the question about transferring the house to the caregiver child. Their concerns may be taken care of if the caregiver child becomes the home owner and continues living in the house and decides to sell it after two years. The Principal Residence Exclusion is an income tax law that saves people from paying a capital gains tax on the sale of their home.
www.law.cornell.edu/uscode/text/26/121 see more
Question
My brother has DPOA of health care for my Mother. Do I need his permission to access her medical records?
Has your brother told your mother's health care providers not to provide her health care information to you or other family members?... Has your brother told your mother's health care providers not to provide her health care information to you or other family members?
Health care providers have flexibility when working with people who are helping a family member with health care arrangements. A government website answers Frequently Asked Questions and explains:
"The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient’s care or payment for health care."
http://www.hhs.gov/hipaa/for-professionals/faq/488/does-hipaa-permit-a-doctor-to-discuss-a-patients-health-status-with-the-patients-family-and-friends/index.html
If your brother has given intrusions to the health care providers that makes them unwilling to talk with you, talk to an elder law attorney for ideas on how to help him cooperate with you, other family members and your mother's health care providers.
If your mother is able to communicate verbally, the regulation mentioned in the FAQ explains that your mother can verbally give permission to the health care provider to disclose her information to you.
https://www.gpo.gov/fdsys/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml see more
Health care providers have flexibility when working with people who are helping a family member with health care arrangements. A government website answers Frequently Asked Questions and explains:
"The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient’s care or payment for health care."
http://www.hhs.gov/hipaa/for-professionals/faq/488/does-hipaa-permit-a-doctor-to-discuss-a-patients-health-status-with-the-patients-family-and-friends/index.html
If your brother has given intrusions to the health care providers that makes them unwilling to talk with you, talk to an elder law attorney for ideas on how to help him cooperate with you, other family members and your mother's health care providers.
If your mother is able to communicate verbally, the regulation mentioned in the FAQ explains that your mother can verbally give permission to the health care provider to disclose her information to you.
https://www.gpo.gov/fdsys/pkg/CFR-2003-title45-vol1/xml/CFR-2003-title45-vol1-sec164-510.xml see more
Question
If my Mom has a live-in from Medicaid does she have to provide food/meals?
You question about meals raises many important issues, including your mother's liability for unexpected things that can happen in home... You question about meals raises many important issues, including your mother's liability for unexpected things that can happen in home care.
Is your mother's caregiver an employee of a care agency or company that is reimbursed or contracted by Medicaid? Or is the caregiver a person who is hired by your mother? Is there a third party agency that administers the Medicaid payment?
Understanding the answers to these questions can help you determine the policies and guidelines for caregiver meals, and establish who would be responsible for a caregiver injury.
A California case, where the caregiver was an employee of an agency or company, illustrated why it is important to make sure that the caregiver is covered by worker's compensation insurance:
https://www.agingcare.com/articles/can-hired-caregivers-sue-patients-172542.htm see more
Is your mother's caregiver an employee of a care agency or company that is reimbursed or contracted by Medicaid? Or is the caregiver a person who is hired by your mother? Is there a third party agency that administers the Medicaid payment?
Understanding the answers to these questions can help you determine the policies and guidelines for caregiver meals, and establish who would be responsible for a caregiver injury.
A California case, where the caregiver was an employee of an agency or company, illustrated why it is important to make sure that the caregiver is covered by worker's compensation insurance:
https://www.agingcare.com/articles/can-hired-caregivers-sue-patients-172542.htm see more
Question
My mother is on medicaid and will be receiving an inheritance of approximately 250,000. How can she spend this...
Is your mother a resident of a facility, or is she receiving Medicaid benefits to pay for home care? The answer to your question about the... Is your mother a resident of a facility, or is she receiving Medicaid benefits to pay for home care? The answer to your question about the $250,000 bequest depends on your specific circumstances.
Medicaid vs Inheritance was discussed in a recent AgingCare.com article:
https://www.agingcare.com/articles/Medicaid-vs-Inheritance-192510.htm?utm_source=Newsletter&utm_medium=Email&utm_campaign=Newsletter%20-%20January%202,%202016
If your mother is a nursing home resident, one option to consider is setting the money aside in a Pooled Trust, to supplement the care that the nursing home is providing. 42 U.S. Code § 1396p(d)(4)(C) allows a Medicaid beneficiary to put assets into a Pooled Trust established and managed by a non-profit association, with a separate account maintained for each beneficiary of the trust, solely for the benefit of individual, and as long as any money remaining in the beneficiary’s account upon the death of the beneficiary are paid to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
https://www.law.cornell.edu/uscode/text/42/1396p
If available in your state, the pooled trust option lets you to set funds set aside, without losing Medicaid eligibility, so you will always have a reserve to pay for services and supplies your mother needs.
If you consult an elder law attorney near you, you can get complete advice on pooled trust accounts, the probate laws that may apply to your circumstances, and any other options that are available to help your mother. see more
Medicaid vs Inheritance was discussed in a recent AgingCare.com article:
https://www.agingcare.com/articles/Medicaid-vs-Inheritance-192510.htm?utm_source=Newsletter&utm_medium=Email&utm_campaign=Newsletter%20-%20January%202,%202016
If your mother is a nursing home resident, one option to consider is setting the money aside in a Pooled Trust, to supplement the care that the nursing home is providing. 42 U.S. Code § 1396p(d)(4)(C) allows a Medicaid beneficiary to put assets into a Pooled Trust established and managed by a non-profit association, with a separate account maintained for each beneficiary of the trust, solely for the benefit of individual, and as long as any money remaining in the beneficiary’s account upon the death of the beneficiary are paid to the State from such remaining amounts in the account an amount equal to the total amount of medical assistance paid on behalf of the beneficiary.
https://www.law.cornell.edu/uscode/text/42/1396p
If available in your state, the pooled trust option lets you to set funds set aside, without losing Medicaid eligibility, so you will always have a reserve to pay for services and supplies your mother needs.
If you consult an elder law attorney near you, you can get complete advice on pooled trust accounts, the probate laws that may apply to your circumstances, and any other options that are available to help your mother. see more
Question
Can wrist restraints be used legally in SC for a dementia patient who is aggressive?
Federal laws and regulations talk about restraints on people who are residents of care facilities. Under Federal law, patients have the... Federal laws and regulations talk about restraints on people who are residents of care facilities. Under Federal law, patients have the right to be free from:
"any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.
Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
These broad guidelines may be helpful as you search for solutions to the combative behavior. Talk with a social worker at your local ASAP (Aging Services Access Point) and an elder law attorney, to learn about laws and regulations in your state that may protect people in your home care situation.
Continue talking with the physicians to see if you can spot behavioral triggers that can be alleviated. Dr. Helen Kyomen, a geriatric psychiatrist, has written online articles on Agitation in Older Adults, suggesting the questions you can ask when an elder show signs of agitation. Paul Raia, Ph.D. of the Alzheimer’s Association has explained how a behavior plan can be developed to identify triggers for agitation and anxiety in dementia patients. see more
"any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.
Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
These broad guidelines may be helpful as you search for solutions to the combative behavior. Talk with a social worker at your local ASAP (Aging Services Access Point) and an elder law attorney, to learn about laws and regulations in your state that may protect people in your home care situation.
Continue talking with the physicians to see if you can spot behavioral triggers that can be alleviated. Dr. Helen Kyomen, a geriatric psychiatrist, has written online articles on Agitation in Older Adults, suggesting the questions you can ask when an elder show signs of agitation. Paul Raia, Ph.D. of the Alzheimer’s Association has explained how a behavior plan can be developed to identify triggers for agitation and anxiety in dementia patients. see more
Question
Spousal impoverishment under VA healthcare/assisted living. Any advice?
An advocate in your city or town could help you sort out the confusion the discharge planners are having with your husband's level of... An advocate in your city or town could help you sort out the confusion the discharge planners are having with your husband's level of care. The primary care doctor's recommendation for a neuropsychologist evaluation is an excellent first step. If your husband gets a thorough examination that documents the deficits you describe, an elder law attorney or veterans benefits attorney could begin the process of convincing the VA providers to provide the needed level of care and resources. Use your state or county bar association to find a local attorney who specializes in veterans benefits and elder law. Your state may also have a veterans agent assigned to advocate for residents of your city or town. see more
Question
Money follows the person waivers. Have you used a waiver?
What state do you live in? In Massachusetts, Money Follows the Person (MFP) is a demonstration program that moves eligible elderly and... What state do you live in? In Massachusetts, Money Follows the Person (MFP) is a demonstration program that moves eligible elderly and disabled people out of nursing homes and into the community. To be eligible, you must be ready to go home after living for at least 90 days in a nursing home paid by MassHealth long term care.
MFP provides up to one year of benefits not normally covered by MassHealth, to transition a nursing home resident back to their home in the community. There are two waivers under this program;
Residential Supports Waiver provides 24/7 supervision and staffing in a "qualified residence" including residential habilitation, assisted living, or day care services.
Community Living Waiver covers people who live in their own home, or the home of another,
A transition coordinator supervises the patient’s successful reintegration into the community. The regulations and law are at:
130 CMR § 529.007(H); Mass. Gen. Laws ch.10, §35TT
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter10/Section35TT see more
MFP provides up to one year of benefits not normally covered by MassHealth, to transition a nursing home resident back to their home in the community. There are two waivers under this program;
Residential Supports Waiver provides 24/7 supervision and staffing in a "qualified residence" including residential habilitation, assisted living, or day care services.
Community Living Waiver covers people who live in their own home, or the home of another,
A transition coordinator supervises the patient’s successful reintegration into the community. The regulations and law are at:
130 CMR § 529.007(H); Mass. Gen. Laws ch.10, §35TT
https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter10/Section35TT see more
Question
Can a guardian live in a different state than the ward?
Your question requires an understanding of how your mother is paying for nursing home care in Florida, and real estate title law in... Your question requires an understanding of how your mother is paying for nursing home care in Florida, and real estate title law in Georgia. Talk to an elder law attorney in Florida who can help coordinate the work of a real estate title attorney in Georgia.
There is a Uniform Adult Guardianship and Protective Proceedings Jurisdictions Act that many states have adopted, to help people manage inter state guardianships. But do you need guardianship proceedings? You have Power of Attorney. Again, the elder law attorney can coordinate things for you! Thanks for taking care of your Mom's care. see more
There is a Uniform Adult Guardianship and Protective Proceedings Jurisdictions Act that many states have adopted, to help people manage inter state guardianships. But do you need guardianship proceedings? You have Power of Attorney. Again, the elder law attorney can coordinate things for you! Thanks for taking care of your Mom's care. see more
Question
Do we have to pay taxes on my Dad's cashed out life insurance policies?
In your question, you say: "We are filing for medicaid for my dad. he is in a nursing home" and "we will have to use all the... In your question, you say: "We are filing for medicaid for my dad. he is in a nursing home" and "we will have to use all the money to pay for nursing home."
You may be able to set aside all of the insurance policy cash in a pooled trust account for your father. Talk with an elder law attorney in your state, who can assist you with the Medicaid application, and help you protect your father's quality of life.
Funds deposited in a pooled trust account (also known as (d)(4)(C) trusts) can be used for any suitable purpose that assists the account beneficiary. Hiring an accountant to take care of tax filings and all of your questions would benefit your father. An accountant can be paid from the funds that you set aside in the pooled trust.
More important, the trust funds can be used to supplement care that staff in the nursing home are not able to provide. see more
You may be able to set aside all of the insurance policy cash in a pooled trust account for your father. Talk with an elder law attorney in your state, who can assist you with the Medicaid application, and help you protect your father's quality of life.
Funds deposited in a pooled trust account (also known as (d)(4)(C) trusts) can be used for any suitable purpose that assists the account beneficiary. Hiring an accountant to take care of tax filings and all of your questions would benefit your father. An accountant can be paid from the funds that you set aside in the pooled trust.
More important, the trust funds can be used to supplement care that staff in the nursing home are not able to provide. see more
Question
Can anyone tell me what a person can do to stop an executor of the will if he can't be trusted?
Where was the person's residence on the date of death? The state law will give you some answers to your questions about the... Where was the person's residence on the date of death? The state law will give you some answers to your questions about the executor's duties.
In my state, Massachusetts, anyone in possession of an original Will document has a duty to deliver the Will either to the Probate Court or to someone who can properly file it with Probate Court. Here is what Section 2-516 of the Massachusetts Uniform Probate Code says about Duty of Custodian of Will; Liability:
"After the death of a testator a person having custody of a will of the testator shall deliver it within thirty days after notice of the death to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."
http://www.mass.gov/courts/docs/courts-and-judges/courts/probate-and-family-court/art2.pdf
An old state law in Massachusetts provided that a person interested in the estate may initiate proceedings to compel delivery of a will to the Probate Court by a complaint. When the Probate Code was put into effect in Massachusetts, the drafters said: "that appears to be implied in the last sentence of section 2-516."
A probate and estate settlement attorney in your state can advise on how state laws can help solve your situation. see more
In my state, Massachusetts, anyone in possession of an original Will document has a duty to deliver the Will either to the Probate Court or to someone who can properly file it with Probate Court. Here is what Section 2-516 of the Massachusetts Uniform Probate Code says about Duty of Custodian of Will; Liability:
"After the death of a testator a person having custody of a will of the testator shall deliver it within thirty days after notice of the death to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."
http://www.mass.gov/courts/docs/courts-and-judges/courts/probate-and-family-court/art2.pdf
An old state law in Massachusetts provided that a person interested in the estate may initiate proceedings to compel delivery of a will to the Probate Court by a complaint. When the Probate Code was put into effect in Massachusetts, the drafters said: "that appears to be implied in the last sentence of section 2-516."
A probate and estate settlement attorney in your state can advise on how state laws can help solve your situation. see more
Question
My husband is a veteran but only in the navy for a year before war was over. Is he still eligible for VA home...
Service dates and other eligibility information for Aid & Attendance pension is here:... Service dates and other eligibility information for Aid & Attendance pension is here:
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search Aid and Attendance in the agingcare.com search box for more articles. see more
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search Aid and Attendance in the agingcare.com search box for more articles. see more
Question
Applying for VA widow's benefits. Any advice?
Information about aid and attendance eligibility is here:... Information about aid and attendance eligibility is here:
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search aid and attendance in the aging care.com search box for more articles. see more
https://www.agingcare.com/articles/veteran-aid-attendance-benefit-long-term-care-156656.htm
Also, search aid and attendance in the aging care.com search box for more articles. see more
Question
Can I be held legally responsible for damages to my Mother's house or injuries that may happen to my Mother in...
The fact pattern you described is familiar. I typed in a search of agingcare.com for "elder neglect" and the top article is on... The fact pattern you described is familiar. I typed in a search of agingcare.com for "elder neglect" and the top article is on self neglect:
https://www.agingcare.com/News/The-Hidden-Dangers-of-Elder-Self-Neglect-146760.htm
Your question about legal responsibility is important. Can a family member simply walk away from someone whom they have cared for? There may be many theories of liability. Rather than write about all the bad things that could be imagined, I'd like to mention some of the resources and approaches that you could look to, for help with these difficult and frustrating circumstances.
Have you called on the Area Agency on Aging, ASAP (Aging Services Access Point) or town senior center? There may be many resources for care and assistance available to you. These agencies should provide you with approaches that can work.
Alzheimer's Association offers support groups and training for caregivers.
If you need legal authority to protect your mother's finances and health, a Conservatorship and/or Guardianship petition can bring the needs into focus and provide you, or an objective professional Guardian, with the authority to manage care and finances. There may be a charitable organization that provides guardianship services in your area.
The ASAP and/or an elder law attorney can help you identify home care reimbursement and payment programs that may be available through Medicaid, state agencies or the VA if you mother or father are veterans.
There's no denying the difficulty of the situation, but finding help to serve your mother's best interests is an accomplishment that is worth the effort. see more
https://www.agingcare.com/News/The-Hidden-Dangers-of-Elder-Self-Neglect-146760.htm
Your question about legal responsibility is important. Can a family member simply walk away from someone whom they have cared for? There may be many theories of liability. Rather than write about all the bad things that could be imagined, I'd like to mention some of the resources and approaches that you could look to, for help with these difficult and frustrating circumstances.
Have you called on the Area Agency on Aging, ASAP (Aging Services Access Point) or town senior center? There may be many resources for care and assistance available to you. These agencies should provide you with approaches that can work.
Alzheimer's Association offers support groups and training for caregivers.
If you need legal authority to protect your mother's finances and health, a Conservatorship and/or Guardianship petition can bring the needs into focus and provide you, or an objective professional Guardian, with the authority to manage care and finances. There may be a charitable organization that provides guardianship services in your area.
The ASAP and/or an elder law attorney can help you identify home care reimbursement and payment programs that may be available through Medicaid, state agencies or the VA if you mother or father are veterans.
There's no denying the difficulty of the situation, but finding help to serve your mother's best interests is an accomplishment that is worth the effort. see more
Question
The law says NH must allow patients to be free from restraints, do they comply?
Under Federal law, patients have the right to be free from: any physical or chemical restraints imposed for purposes of discipline or... Under Federal law, patients have the right to be free from:
any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
Guidance issued to Surveyors for Long Term Care Facilities by the Centers for Medicare & Medicaid Services lists the serious conditions that justify antipsychotic use, and the inadequate indications for administering antipsychotic medications. They should not be used if the only indication is one or more of the following:
1) wandering;
2) poor self-care;
3) restlessness;
4) impaired memory;
5) mild anxiety;
6) insomnia;
7) unsociability;
8) inattention or indifference to surroundings;
9) fidgeting;
10) nervousness;
11) uncooperativeness; or
12) verbal expressions or behavior that are not due to the conditions listed under “Indications” and do not represent a danger to the resident or others. Guidance issued by the Centers for Medicare & Medicaid Services, State Operations Manual, Appendix PP at 387 [PDF document page 434]. When antipsychotics are used without monitoring they may be considered unnecessary medications because of inadequate monitoring. Id. at 389.
In my state, Massachusetts, the legislature has enacted a law that requires all nursing homes to get consent from a resident, or a Health Care Agent or Guardian, before administering any psychotropic medication. This informed consent law requires the nursing home to give notice to the resident that includes (i) the purpose for administering a psychotropic drug, (ii) the prescribed dosage, and (iii) any known effect or side effect of the psychotropic medication. This law is codified as Mass. Gen. Laws ch. 111, §72BBB, but it is up to family members to be aware of the needs of the dementia patient, and the alternatives to antipsychotic medications.
Sources:
www.law.cornell.edu/uscode/text/42/1395i-3
www.law.cornell.edu/uscode/text/42/1396r
www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72BB see more
any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms. Restraints may only be imposed—
(I) to ensure the physical safety of the resident or other residents, and
(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used.”
42 U.S.C. § 1395i-3(c)(1)(A)(ii) and 42 U.S.C. § 1396r(c)(1)(A)(ii).
Guidance issued to Surveyors for Long Term Care Facilities by the Centers for Medicare & Medicaid Services lists the serious conditions that justify antipsychotic use, and the inadequate indications for administering antipsychotic medications. They should not be used if the only indication is one or more of the following:
1) wandering;
2) poor self-care;
3) restlessness;
4) impaired memory;
5) mild anxiety;
6) insomnia;
7) unsociability;
8) inattention or indifference to surroundings;
9) fidgeting;
10) nervousness;
11) uncooperativeness; or
12) verbal expressions or behavior that are not due to the conditions listed under “Indications” and do not represent a danger to the resident or others. Guidance issued by the Centers for Medicare & Medicaid Services, State Operations Manual, Appendix PP at 387 [PDF document page 434]. When antipsychotics are used without monitoring they may be considered unnecessary medications because of inadequate monitoring. Id. at 389.
In my state, Massachusetts, the legislature has enacted a law that requires all nursing homes to get consent from a resident, or a Health Care Agent or Guardian, before administering any psychotropic medication. This informed consent law requires the nursing home to give notice to the resident that includes (i) the purpose for administering a psychotropic drug, (ii) the prescribed dosage, and (iii) any known effect or side effect of the psychotropic medication. This law is codified as Mass. Gen. Laws ch. 111, §72BBB, but it is up to family members to be aware of the needs of the dementia patient, and the alternatives to antipsychotic medications.
Sources:
www.law.cornell.edu/uscode/text/42/1395i-3
www.law.cornell.edu/uscode/text/42/1396r
www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/som107ap_pp_guidelines_ltcf.pdf
www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXVI/Chapter111/Section72BB see more
Question
Can Medicare take all of someone Insurance money?
Can I assume that you are asking about Medicaid eligibility for your grandmother's nursing home care? (Medicare coverage should not be... Can I assume that you are asking about Medicaid eligibility for your grandmother's nursing home care? (Medicare coverage should not be affected by inheritance of a life insurance policy).
If your question is about Medicaid, your question shows us how Estate Planning and Probate law overlaps with the laws and regulations that govern Public Benefits like Medicaid.
If the gentleman who passed away had no will, and there is no beneficiary listed on the insurance policy, the life insurance money passes to the person(s) listed in your state's "intestacy" law. That's the Probate law that the attorney explained to you.
If your grandmother is the "next of kin," the Public Benefits laws and regulations decide how much money she can have in the bank when Medicaid decides whether it will pay for her nursing home care. The lesson for most of us reading this is the need for everyone in our families to plan ahead, so that we won't leave problems for our survivors.
It sounds like the son could have done some planning to protect your grandmother. But there are many things you can still do now, to make sure the life insurance money benefits your grandmother, and does not disqualify her from receiving Medicaid nursing home coverage. Talk to an elder law attorney who understands your grandmother's needs and circumstances, and ask about pooled trusts in your state that are administered by charities. see more
If your question is about Medicaid, your question shows us how Estate Planning and Probate law overlaps with the laws and regulations that govern Public Benefits like Medicaid.
If the gentleman who passed away had no will, and there is no beneficiary listed on the insurance policy, the life insurance money passes to the person(s) listed in your state's "intestacy" law. That's the Probate law that the attorney explained to you.
If your grandmother is the "next of kin," the Public Benefits laws and regulations decide how much money she can have in the bank when Medicaid decides whether it will pay for her nursing home care. The lesson for most of us reading this is the need for everyone in our families to plan ahead, so that we won't leave problems for our survivors.
It sounds like the son could have done some planning to protect your grandmother. But there are many things you can still do now, to make sure the life insurance money benefits your grandmother, and does not disqualify her from receiving Medicaid nursing home coverage. Talk to an elder law attorney who understands your grandmother's needs and circumstances, and ask about pooled trusts in your state that are administered by charities. see more
Question
When to put money into Special Needs Trust?
You are asking a series of important questions that affect the lives and finances of two people: 1) your mother. Consider her care needs... You are asking a series of important questions that affect the lives and finances of two people:
1) your mother. Consider her care needs and ways you can use her resources to avoid a nursing home admission.
2) your brother. Consider his needs, and ways supplemental funds could improve his life.
You explained how both people need to comply with the regulations the govern public benefits. You are in the position of responsibility for understanding the rules that affect both people.
The terms of your brother's Special Needs Trust are the key to understanding whether the Trust is a useful way of managing your mother's precious financial resources. Here are some questions you could ask an elder law - special needs attorney who can help you:
Does my brother's Special Needs Trust have the language that is needed to make any transfers my mother makes to fund the Trust "not countable" if she needs Medicaid?
What are the fraudulent transfer laws in my mom's state? Will a transfer to a disabled child's trust be exempt from "claw back" by her creditors?
Is the Supplemental Needs Trust written properly, so any funds in it won't be considered "available resources" to my brother?
You mentioned that your mother has limited resources to contribute to the Trust, and you are reluctant to get involved in dealing with distributions. Have you considered establishing an account with pooled trust in your state? These are known as (d)(4)(C) trusts. The pooled trust administrators are professionals, and can handle the details of distributing your brother's funds at standard rates. see more
1) your mother. Consider her care needs and ways you can use her resources to avoid a nursing home admission.
2) your brother. Consider his needs, and ways supplemental funds could improve his life.
You explained how both people need to comply with the regulations the govern public benefits. You are in the position of responsibility for understanding the rules that affect both people.
The terms of your brother's Special Needs Trust are the key to understanding whether the Trust is a useful way of managing your mother's precious financial resources. Here are some questions you could ask an elder law - special needs attorney who can help you:
Does my brother's Special Needs Trust have the language that is needed to make any transfers my mother makes to fund the Trust "not countable" if she needs Medicaid?
What are the fraudulent transfer laws in my mom's state? Will a transfer to a disabled child's trust be exempt from "claw back" by her creditors?
Is the Supplemental Needs Trust written properly, so any funds in it won't be considered "available resources" to my brother?
You mentioned that your mother has limited resources to contribute to the Trust, and you are reluctant to get involved in dealing with distributions. Have you considered establishing an account with pooled trust in your state? These are known as (d)(4)(C) trusts. The pooled trust administrators are professionals, and can handle the details of distributing your brother's funds at standard rates. see more
Medicaid 5-year look back - what is looked at, and to what level of detail, as far as determining penalties?
Medicaid is the government program that covers custodial care provided by nursing homes. In order to qualify for Medicaid Long Term Care, an applicant must be financially eligible. The person who needs care must fie a detailed application which discloses to the government all of the applicant's assets and financial resources.
If the applicant owns assets worth more than the government allows ($2,000 for a single individual), the applicant's assets must be used to pay the nursing home, before the government will provide Medicaid benefits to pay the nursing home. Asset transfers must be listed on a Medicaid application, unless 5 years have passed since date of transfer.
But, if proper steps are taken, your mother in law does not have to continue spending down her assets before filing the Medicaid application, and qualifying for Medicaid benefits.
A pooled trust account can be opened to hold your mother in law's excess assets. Money saved in a Pooled Trust account can be used for Quality of Life enhancements for a nursing home resident. Ask the elder law attorney to provide you with a list of Pooled Trust administrators in your state. Pooled Trusts, also known as (d)(4)(C) Trusts, are sponsored by charitable agencies for the benefit of disabled people.
Also, there may be other Medicaid regulations in your state that could help your mother in law. For example, money that is transferred to a properly prepared trust that benefits a disabled family member will not be counted against your mother in law.
Hiring an elder law attorney now will benefit your mother in law, and your entire family. The detailed work required to plan for and obtain Medicaid eligibility can be handled by the attorney, allowing you and other family members to spend more time visiting and caring for your loved one. see more