Elder Law Blog

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What does the Bakery case mean for disabled persons?

Hopefully, the answer is that it means nothing. However, religion has been used to justify intolerance since the dawn of time. An article describing historic discrimination of disabled persons concludes that virtually all major religions have, at one time or another, found a reason to relegate disabled persons to second class status. In Judaism, the source for discrimination was the Pentateuch's prohibition on those with defects approaching God. For Christians, it is a distorted view, taken from Matthew 9:2,7, that disability is the result of sin. Other religions find similar historic justifications. See M. Moore, Religious Attitudes toward the Disabled (2015), at https://infidels.org/library/modern/michael_moore/disabled.html.

Thankfully, most people don't think that way in modern times. However, one would need to have his or her head in the ground to ignore American culture is more and more defined by intolerance; we must be on-guard against anyone who discriminates against disabled persons. That's where the Masterpiece Cakeshop case could become relevant. In Masterpiece Cakeshop, Ltd et al. v. Colorado Civil Rights Commission, et al, ___ U.S. ____ (2018), at https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf, the Supreme Court held that the Colorado Civil Rights Commission was wrong when it found that Masterpiece Cakeshop violated a gay couple's rights by refusing to bake a wedding cake based on the owner's religious belief that homosexuality is wrong. One reason why the Colorado Civil Rights Commission got it wrong was that it's ruling predated the Supreme Court's decision in United States v. Windsor (Obergefell), 570 U.S. 744, holding that States cannot prohibit LGBT couples from getting married. Another was the Commission's unequal enforcement of it's rule, allowing certain bakers to refuse to prepare cakes that disparaged LGBT marriage, whioe at the same time requiring that Masterpiece Cakeshop prepare a cake its owner thought offended his religious beliefs. State action must be neutral concerning religion.

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Nursing home residents have right to know what's going on with their care

Kathleen Audia is sixty three (63) years old this year. She has been hearing impaired since childhood, and lost total hearing when she was fifty-five (55). Her primary language is American Sign Language; she does not read lips well enough to understand more than a small portion of conversations.

In 2015, Kathleen fell. She had a deep cut to her head, called a laceration. Kathleen was admitted to a hospital and, after discharge (and after spending a few days at another facility), she became a resident at Briar Place Nursing and Rehabilitation (in Illinois). While at Briar Place, Kathleen was diagnosed with major depressive disorder, balance and gait issues, osteoarthritis, and low back pain.

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Euthanasia – Are we there?

On January 29, 2018, CNN reported that a British Court ruled in favor of doctors, and against parents, holding that doctors could withdraw life support for a severely disabled child. Baby Isaiah was born by emergency cesarean after his mother experienced a rupture in her uterus. At birth, he had no audible heartbeat or respiration, but was revived. Doctors argued it was not in Isaiah’s interest to prolong his life.

Euthanasia is the practice of intentionally ending life to releive pain and suffering. Technically, withdrawing life sustaining treatment is not considered euthanasia, but in most cases the withdrawal of treatment is at the patient’s request, not the government, not the medical community, and not insurers. The notion that a patient controls his or her own care, including the right to refuse treatment stems from Cruzan v. Director, Mo. Dep’t Health, 497 U.S. 261 (1990) and related cases.

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Look after your loved ones even if they are in a nursing home or ALF

On December 28, 2017, CNN reported the beating of an eighty-six year old man with dementia who was a resident in an assisted living facility. Apparently a younger resident accused the older gentleman of eating his cupcake. The younger resident then beat the older man more than 50 times during a two minute period. No staff were present at the time of the beating.The facility had been sanctioned for other incidents, with two administrators having been arrested on charges of neglect of the elderly.

It is critical that family members visitloved ones in a nursing home or assisted living facility. If you see irregularities, report them to the administrator. If the administrator does not correct the situation, report it to the local ombudsman. If that doesn't resolve the situation, speak with an attorney.

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Why I feel more like a nurse than a wife

 

A video clip from Dr. Phil shows him interviewing the wife of someone with a chronic illness, pointing out the strain on caregivers. One of the points made is that you can't give what you don't have, so you must make time to take care of yourself. The clip is available at the following link.

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What it takes to become a Certified Elder Law Attorney

Have you ever wondered what's different about a Certified Elder Law Attorney and other lawyers? The following article describes the rigorous examination, which is only one element of the process.

http://www.nelf.org/the-cela-exam-no-harder-than-it-needs-to-be/ 

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SEC Approves Rules Relating to Financial Exploitation of Seniors

The SEC approved: (1) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit members to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers; and (2) amendments to FINRA Rule 4512 (Customer Account Information) to require members to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account. New Rule 2165 and the amendments to Rule 4512 become effective February 5, 2018.

Full text of Rule: http://www.finra.org/sites/default/files/Regulatory-Notice-17-11.pdf

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Family of nursing home resident forced to arbitrate wrongful death claim

Lola Norton was a nursing home resident. After her death, her husband brought a wrongful death claim against PruittHealth - Taccoa. The alleged injuries are unimportant for purposes of this blog article.

The nursing home responded to the lawsuit by showing where Kim, Lola's daugher and agent under Lola's power of attorney, signed an arbitration agreement. Presumably it was part of the admissions package. In other words, the nursing home didn't want a jury deciding the case. 

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Supreme Court decides case regarding taking service dog to school

In Fry v. Napoleon Community Schools (February 23, 2017), the Supreme Court unanimously ruled that Ehlena Fry, a child with cerebral palsy, should have her day in court to argue that “Wonder,” her service dog, may accompany her to school. Wonder is a trained service dog, recommended by Ehlena’s pediatrician. Wonder, a goldendoodle, helps Ehlena to live as independently as possible by assisting her with various life activities. In particular, Wonder aids Ehlena by retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, and helping her transfer to and from the toilet.

The school system refused to allow Wonder to join Ehlena in kindergarten after deciding that a human aide could provide the same assistance provided by Wonder. Later, the same year, Ehelena’s family again sought permission for Wonder to accompany Ehlena and the school agreed to a trial period. At the conclusion of the trial period, the school again said that Wonder was not welcome in the school. Ehlena’s family then filed a complaint with the Department of Education’s Office for Civil Rights (OCR). OCR agreed that the school was discriminating against Ehlena based on her disability. OCR analogized the school’s conduct to requiring a student who uses a wheelchair to be carried by an aide or requiring a blind student to be led around by a teacher instead of permitting him to use a guide dog or cane. In response to OCR’s decision, the school relented, but Ehlena’s parents moved her to a different school out of fear that school officials would resent OCR’s decision and make school difficult. They found a different school which welcomed both Ehlena and Wonder.

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Wartime periods for VA Pension benefits

VA Pension benefits, which includes VA Aid & Attendance, requires 90 days of active duty and at least one of those days must have been during a wartime period. Under current law, VA recognizes the following wartime periods to determine eligibility for VA Pension benefits:Mexican Border Period (May 9, 1916 – April 5, 1917 for Veterans who served in Mexico, on its borders, or adjacent waters)World War I (April 6, 1917 – November 11, 1918)World War II (December 7, 1941 – December 31, 1946)Korean conflict (June 27, 1950 – January 31, 1955)Vietnam era (February 28, 1961 – May 7, 1975 for Veterans who served in the Republic of Vietnam during that period; otherwise August 5, 1964 – May 7, 1975)Gulf War (August 2, 1990 – through a future date to be set by law or Presidential Proclamation)

http://www.benefits.va.gov/pension/wartimeperiod.asp 

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Extra Help With Medicare Prescription Drug Plan Costs

The application for extra assistance paying for prescription drugs is at: https://secure.ssa.gov/i1020/start

You should complete this application for Extra Help on the Internet if:

You have Medicare Part A (Hospital Insurance) and/or Medicare Part B (Medical Insurance); andYou live in one of the 50 States or the District of Columbia; andYour combined savings, investments, and real estate are not worth more than $27,250, if you are married and living with your spouse, or $13,640 if you are not currently married or not living with your spouse. (Do NOT count your home, vehicles, personal possessions, life insurance, burial plots, irrevocable burial contracts or back payments from Social Security or SSI.) If you have more than those amounts, you may not qualify for the extra help. However, you can still enroll in an approved Medicare prescription drug plan for coverage.
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Backdoor filial responsibility in Georgia

Filial responsibility is a name given to laws that make third parties (usually adult children) responsible for support for indigent family members. These laws are based on English "poor laws" from the 16th Century. Many states, including Georgia, have these laws on the books. Georgia's version, however, has been a toothless tiger for the most part. The Georgia statute is found at O.C.G.A. § 36-12-3. There, it provides that the “county” providing care for a pauper may bring an action against a father, mother or child to recover support provided to the pauper. These days, however, counties rarely provide support, so it’s difficult to imagine how a claim could be brought.

By contrast, Pennsylvania has a broader filial responsibility statute. In Health Care & Ret. Corp. of America v. Pittas, 46 A.3d 719 (Super. Ct. of Penn. 2012), a nursing home sued a son for his mother’s unpaid nursing home bills. The case went to arbitration, where the son won. However, the nursing home appealed the case and the arbitration award was reversed in the Common Pleas Court, and upheld on appeal. On appeal, the son objected to the Court placing on him the burden to prove he was unable to pay, because other family members were not held liable with him, because the Court refused to consider other potential sources of payment such as Medicaid, and because his mother was not indigent. The Court rejected each of the son’s arguments, but noted that if Medicaid was ultimately approved, then he would have no responsibility to pay the bill.

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Special Needs Trust Fairness Act

The Special Needs Trust Fairness Act (Section 5007 of the 21st Century Cures Act) was signed by President Obama on February 13, 2016. The Act changes a provision relating to self-settled special needs trusts that formerly prevented the disabled individual from establish his or her own special needs trust. Prior to February 13, 2016, the law provided that a self-settled trust could only be established by a parent, grandparent, guardian or court. Special needs advocacy groups found the old law offensive because it seemed to presume that a disabled individual lacked capacity to make his or her own decisions.

The old rule created problems beyond the inconvenience (or lack of dignity) associated with requiring that a parent, grandparent, guardian or court establish the trust. In Draper v. Colvin, No. 13-2757 (8th Cir. 2015), the parents of a special needs child asked a court to approve establishment of a special needs trust. However, after the court approved the trust, the parents used their power of attorney to transfer the child's assets into the trust. The Social Security Administration took the position that the initial funding of the trust with a power was part of the act of establishing the trust, and since an agent under a power of attorney is acting for his or her principal, the disabled child actually established the trust. The result was the trust was ineffective. The Special Needs Trust Fairness Act eliminates this type of issue.

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2017 Spousal Impoverishment Standards

CMS has published the 2017 Spousal Impoverishment Standards at:

https://www.medicaid.gov/medicaid/eligibility/downloads/spousal-impoverishment/2017-ssi-and-spousal-impoverishment-standards.pdf 

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Is a husband liable for his wife's debts (or vice versa), Part 2?

Recently, the 11th Circuit Court of Appeals decided a case (Key Equipment Finance, Inc. v. Overend) that causes us to revisit the question of spousal liability. We care because the 11th Circuit (a federal appeals court) covers Georgia, and the case involved a question of Georgia law.

George Overend borrowed money from KeyBank to finance the construction of a medical imaging center. After he borrowed money, he transferred a one-half interest in his home to his wife's revocable trust. Overend's business venture went bankrupt, and when KeyBank tried to collect it's money, KeyBank argued that it could set-aside the homeplace transfer as a fraudlent conveyance.

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Is a husband liable for his wife’s debt (or vice versa)?

Many families assume that one spouse is liable for the other’s debt. In Georgia, that’s typically not the case. O.C.G.A. § 19-3-9 specifically provides that the separate property of each spouse shall remain the separate property of that spouse, except in limited circumstances.

In Walton Elect. Membership Corp. v. Snyder, 226 Ga. App. 673 (1997), a creditor attempted to collect from one spouse a debt owed by the other. Specifically, Deborah Patton had a contract with Walton Electric to provide electricity. Later, she moved in with Howard Snyder, who also had his own contract with Walton Electric. When Howard and Deborah got married, Deborah had an unpaid, past due balance with Walton Electric. After Walton Electric discovered Howard and Deborah were married, it added Deborah’s past due bill to Howard’s account. Howard objected and refused to pay the bill. Walton Electric then disconnected Howard’s power, so Howard sued. In finding that Howard was right, and that he was not liable for Deborah’s debt, the Georgia Court of Appeals cited to O.C.G.A. § 13-5-30. There, Georgia law provides that a promise to answer for another’s debt must be in writing, and signed by the person undertaking the debt. Further, in the Snyder case, the Court found that the contract must be an original obligation. What is that important? Walton Electric tried to claim that Howard signed a membership agreement when he joined Walton Electric. Ordinarily, if a married couple joins, they become joint members. However, Howard joined Walton Electric as a single person and Walton Electric was not authorized to unilaterally change the agreement just because he was married. To create a joint obligation, a new contract, with new consideration, would be required if Howard was to become liable for Deborah’s debt.

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Can you sell your home after you go on Medicaid (or to a nursing home)

The short answer is "yes, you can" sell your house. However, there may be consequences.

A home is usually an exempt resource when you apply for Medicaid. Cash from the sale of a home, is not exempt and counts toward your $2,000 resource limit. Therefore, if you sell your home, you must report the sale to Medicaid within 10 days and you will probably be kicked off of Medicaid until you do something with the cash. One option is to spend the cash on nursing home care until you're broke and then go back on Medicaid. That;s probably not a good choice because that does nothing to enhance your circumstances or your quality of life. Another option is to speak with a Certified Elder Law Attorney about ways you can plan for your future needs, or the future needs of your spouse or children (especially if you have disabled children or grandchildren).

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VA Aid & Attendance

VA Aid and Attendance is a means-tested benefit available for veteran's with a non-service connected disability. It is frequently used by aging veterans to pay for long-term care. The benefit is available veterans who served 90 or more days of active duty with at least one day of service during a wartime period, and who have an other than dishonorable discharge.

The 2016 benefit rate is $1,788 for a single veteran, $2,120 for a veteran with a spouse, and $1,149 for a surviving spouse. These rate will increase by 0.3% for 2017 due to a Cost-of-Living Adjustment. These are maximum A&A benefit rates. To receive the maximum rate, you must need the aid of another person to perform personal functions in everyday living, such as bathing, feeding, dressing, toileting, adjusting prosthetic devices, or protecting yourself from the hazards of everydasy environment, or you must be bedridden, or you must be in a nursing home for a mental or physical condition, or you must be nearly blind. You must also have Income for VA Purposes (IVAP) that is below the benefit rate.

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If I have Medicare and other health coverage, who pays first?

This issue comes up when an individual is eligible for Medicare, but also has other coverage. It's known as "coordination of benefits." The answer is, it depends on the type of coverage you have.

For example, if you have Medicare and Medicaid, then Medicare always pays first. Medicaid would only pay the amount remaining after Medicare pays for it's share.

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Can I have Medicare and a Marketplace policy?

Generally, no. It's illegal to sell you a marketplace policy if you have Medicare. Section 1882(d) of the Social Security Act makes it illegal to knowingly sell duplicate coverage to a Medicare beneficiary.

If you already have a marketplace policy before you sign up for Medicare, then you can keep your marketplace policy. However, any tax credits you were receiving will end when your Medicare Part A coverage begins. That means you'll have to pay the full price for your marketplace plan.

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