Elder Law Blog

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.

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.

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.

Does Medicare pay for all of my health care?

No. Medicare only pays for covered goods and services. In fact, there are many co-pays and deductibles. The 2016 co-pays are at the following link: https://www.medicare.gov/your-medicare-costs/costs-at-a-glance/costs-at-glance.html. The 2017 numbers have not been finalized yet, but when they are, they should be posted at the same link. Most individuals who purchase a Medicare Supplement will have the co-pays and deductibles covered by the supplement. You can learn more about Medicare Supplements at https://www.medicare.gov/supplement-other-insurance/medigap/whats-medigap.html 

When can you get Medicare? You can sign up for Medicare during the initial enrollment period, which begins 3 months before the month you turn 65, continues through the month you turn 65 and for an additional three months thereafter. In other words, the initial open enrollment period is 7 months. If you do not enroll in Medicare during the initial enrollment period, then you must wait for a special enrollment period, or for the annual open enrollment period. Special enrollment period includes time while you’re covered by an employer provided health insurance policy, or during the 8 month period after employment ends or after employer provided health coverage ends. The annual open enrollment period is from January 1, through March 31, with coverage beginning on July 1.

https://www.medicare.gov/sign-up-change-plans/get-parts-a-and-b/when-sign-up-parts-a-and-b/when-sign-up-parts-a-and-b.html

Woo-hoo!!! Social Security has increased its payments for 2017 by --- wait for it --- .03% for 2017. That means someone who was on SSI and received $733 per month in 2016 will receive a $2 per month increase in 2017. With monthly benefits soaring to $735 per month, we remind you "don't spend it all in one place!" Meanwhile, the payroll amount subject to Social Security taxes has increased to $127,200.

http://blog.ssa.gov/an-increase-in-social-security-benefits-in-2017/

"Home care aides, mostly women and mostly minorities, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million." Unfortunately, wages have been stagnant. One can only speculate regarding what this means as more Americans are living beyond their health. Beyond the wage issue, there is a labor capacity issue. Americans are aging at a rate that outpaces our ability to provide care AND fill other higher paying jobs. The immigration debate, which is front and center in this year's election, ignores the reality that American will either need to import labor to address it's long-term care needs, or we might need to begin exporting our elderly so they can get care.

P. Span, Wages for Home Care Aides Lag as Demand Grows, http://www.nytimes.com/2016/09/27/health/home-care-aides-wages.html?_r=0

A recent article published by the Huffinton Post explores what it's like to life in a retirment community. In the article, the write states "Studies have shown that people who live in retirement communities are healthier and live longer than people isolated in their own home."

N. Josefowitx, What is it like to live in a retirement community, http://www.huffingtonpost.com/dr-natasha-josefowitz/what-is-it-like-to-live-i_2_b_12201136.html

A recent article in Health Affairs Blog explores the role of family caregivers in the long-term care setting. The following extract addresses some of the burdens of caregiving:

"However, family caregiving can take a large financial, emotional, and physical toll on the caregiver. According to the AARP, the value of informal caregiving provided to adults was approximately $470 billion in 2013. Additionally, close to one out of 10 Americans over the age of 40 are both providing LTSS assistance to a family member and supporting a child. The emotional, social, physical, and financial burden on this “sandwich generation,” is significant."

Caregivers of those with dementia know that decision-making is challenging. The following extract from an article addresses problems with communication.

"Finster has had dementia for 10 years. She has spent most of that time in facilities with increasing levels of care, moving from an independent living facility, to assisted living to memory care. Mantua has felt some of the frustration that caregivers of other patients with dementia have experienced. Three or four years ago, when Finster still  had a phone in her room, she sometimes called her son Les — Mantua’s older brother — 10 times to leave him the same message that people were coming into her room and stealing her food. She simply forgot that she had called before." (emphasis added)

Medicare Home health services

How often is it covered?

Many Americans rely on Social Security for income during retirement. Taking Social Security too early may result in a lifetime reduction of your benefit. Whether you are applying for yourself, or as based on someone else's record (such as a divorced or widowed spouse) we suggest that you speak with a financial planner who can run various scenrios showing how much you would receive if you apply early, at full retirement age, or at age 70 (or anything in between).

A helpful planner is on the Social Security website at https://www.ssa.gov/planners/index.html 

On July 5, 2016, in Doctors Hospital of Augusta v. Alicea, 2016 Ga. LEXIS 448 (2016), the Georgia Supreme Court affirmed lower court decisions denying a motion for summary judgment. In doing so, the Court interpreted the Georgia Advanced Directive Act, O.C.G.A. § 31-32-1 et seq., holding that it is the will of the patient or her designated agent, and not the will of the health care provider, that controls health decisions.

On November 12, 2009, Bucilla Stephenson executed an advance directive naming Jacqueline Alicea, her granddaughter, as health agent. Stephenson was 89 years old at the time. The advance directive specified that Alicea was authorized to make health care decisions for Stephenson in accordance with what Alicea deteremined to be in Stephenson’s best interest. The advance directive also said: “My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make health-care decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.”

As of July 1, 2016, the Georgia DHS is changing the way Home and Community Based Services are awarded.

Home and Community-Based Services are services that help older Georgians live safely, healthily and independently in their communities. The services are funded through the Older Americans Act and include home-delivered meals, personal care assistance, homemaker services and respite care.

David Camp and Crawford Wood were business partners. After Crawford died, the busienss arraingment was restructured, with Camp conveying a property to David Wood (Crawford's son) in return for a $130,000 promissory note. Wood's plan was to pay the note off within three years.

The day after Wood executed the promissory note, Wood transferred the property received from Camp to himself and Stephen Bloom, to whom Wood was married under California law, as joint tenants with rights of survivorship. Wood then travelled to India to undergo treatment for a brain tumor. Wood died within a year and Blom became owner of the property as the sole survivoring joint tenant.

In Space Coast Credit Union v. Groce, 2016 Ga. App. LEXIS 252 (May 2, 2016), a lawsuit was filed to reinstate a first priority deed to secure debt. The creditor, Space Coast Credit Union, argued that its lien against property owned by a nursing home resident, Robert Steve Groce, was still valid because Groce's debt was not paid in full. However, a lawsuit cannot begin until the Defendant has been served, or officially notified that he or she has been sued.

Space Coast hired a private process server who went to Mr. Groce's last known home address. The process server discovered that Groce no longer lived at that address, so it looked elsewhere to find him. About a week later, the process server located Mr. Groce at a nearby nursing home. Mr. Groce was sleeping in his bed, in and out of consciousness and was unable to take the papers. The process server left them on a table next to the bed.

On May 8, 2016, the Seattle Times reported that nursing home evictions are up, presumably to get rid of difficult patients. Matt Sedensky, in Nursing homes turn to evictions to drop difficult residents, available at http://www.seattletimes.com/nation-world/nursing-homes-turn-to-eviction-to-drop-difficult-patients-2/, reported that nursing home seek to increase profits by discharging residents who require labor intensive care, thus eliminating expenses and increasing profits. Citing an Associated Press report, Sedensky reports discharges and evictions are up 57 percent since 2000. “‘When they get tired of caring for the resident, they kick the resident out,’ said Richard Mollot of the Long Term Care Community Coalition, a New York advocacy group.” The article goes on to cite other stakeholders, those representing nursing home residents and the nursing home industry.

Federal and state regulations provide that a nursing home resident may not discharge a resident unless (i) The transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility; (ii) The transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; (iii) The safety of individuals in the facility is endangered; (iv) The health of individuals in the facility would otherwise be endangered; (v) The resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under Medicare or Medicaid) a stay at the facility. For a resident who becomes eligible for Medicaid after admission to a facility, the facility may charge a resident only allowable charges under Medicaid; or (vi) The facility ceases to operate. A discharge for any other reason is illegal. See 42 C.F.R. § 483.12(b).

In Williford v. Brown, 2016 Ga. Lexis 352 (May 9, 2016), Tamara Williford allaged that her step-mother, Mary Ann Brown, denied access to her father, Tommy Brown. Ms. Williford filed a Petition against Mrs. Brown in Hart County Superior Court, alleging a right to visit her father. In her petition, Ms. Williford argued she was Mr. Brown’s biological child, and that he could not leave home but "is in good mental condition and can make decisions for himself." She also argued that the two had a good relationship and used to talk on the telephone regularly, that they saw each other in person, and that her father would like to see Ms. Williford, but was prevented from doing so by Mrs. Brown. Ms. Williford sought an order allowing her unimpeded access to Mr. Brown or appointing a guardian ad litem to ascertain Mr. Brown’s wishes. Mrs. Brown filed an answer denying substantially all of Ms. Williford’s allegations.

Williford v. Brown was presented as a case in equity. In other words, Ms. Williford admitted there was no statute or case law granting a child unimpeded access or visitation right to see a parent. Instead, she argued the circumstances were unjust and the Court should exercise its powers as a court of equity to craft a remedy where none existed.

Replacement birth certificates, death certificates, marriage applications and licenses, and divorce information may be requested through: Vital Records, 2600 Skyland Drive, Atlanta, GA 30319-3640. The call center number is (404) 679-4702. https://dph.georgia.gov/VitalRecords. Some of these records will also be at the local courthouse. For example, a divorce decree should be on file at the Court house where the divorce took place.

Request a copy of your deed in the County where your land is located. All deeds must be recorded with the Clerk of Superior Court. Many deeds are available online by accessing the local Clerk of Superior Court website. Others may be secured through the Georgia Superior Court Clerk's Cooperative Authority at www.gsccca.org.

We are pleased to announce that the Elder Law Practice of David L. McGuffey will host a Special Needs Roundtable in Dalton, Georgia on July 29, 2016. Confirmed speakers and panelists include Key Note Speaker Hal Wright (Certified Financial Planner and Author of "The Complete Guide to Creating a Special Needs Life Plan," available on Amazon.com), Howie Krooks (former President of the National Academy of Elder Law Attorneys, Certified Elder Law Attorney, and member of NAELA's Council of Advanced Practitioners), Patricia E. Kefalas Dudek (member of NAELA's Council of Advanced Practitioners), David L. McGuffey (Certified Elder Law Attorney, and member of NAELA's Council of Advanced Practitioners), William H. Overman (HMS, Director of Trust Services, and member of NAELA's Council of Advanced Practitioners), Fred Phillips, CPA (HMS Trust Services), and Bill Frazier (Senior Vice President, SunTrust Private Wealth Management). Additional panel members are expected. This Roundtable will be held at Stage 123 in Dalton, Georgia. The subject of the roundtable focuses on the question "I've funded my special needs trust, now what?" This will not be your typical "talking heads" program. Instead, it will be a roll up your sleeves and dig in program with audience participation.

Those who should attend are attorneys, accountants, bankers, insurance agents, financial planners and other professionals who work with the special needs community. Registration will open soon and seating is limited. The registration fee is expected to be $200, which will cover 6 hours of programing. If you require continuing education credit, a certificate of attendance will be provided, but you are responsible for submitting your own continuing education request and paying any associated fees. Inquiries may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it..