Elder Law Blog

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A Tale of Two Trusts

Two recent cases make it clear that, even when you are working with special needs trusts, there are reasons for caution.

In the first case, Indiana resident Timothy Todd filed a lawsuit claiming the trustee managing his special needs trust was charging thousands for unnecessary and inappropriate fees. His suit, which seeks class status, claims the National Foundation for Special Needs Integrity, which does business as Special Needs Integrity, violated its fiduciary duty by taking millions of dollars various trusts to pay unjustified legal and other fees. To read more about it, see http://www.indystar.com/story/news/2015/11/16/nonprofit-accused-taking-millions/75886746/.

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Charging for Unauthorized Practice of Law is Theft by Deception

In Marks v. State, 280 Ga. 70 (2005), Ron Russo befriended Leonard Stewart, an 89 year old elder. Russo identified himself as a lawyer, providing advice that had the effect of impovershing Stewart. Among other things, Russo offered to do legal work in exchange for Stewarts 1990 automobile. Russo caused Stewart to make changes to his bank accounts, and ran up charges on Stewart's credit cards.

After bank officials became concerned, they referred the matter to the District Attorney's office, who investigated. When Russo identified himself to bank officials as Stewart's attorney, police were onhand to arrest Russo.

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2016 Conference

Dr. Peter V. Rabins

On February 12 and 13, 2016, the Elder Law Practice hosted a conference on Understanding Dementia, and on Representing Individuals with Diminished and Diminishing Capacity.

The first day was open to all professionals and community members. The link for that program is: http://www.mcguffey.net/2016conference.

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Understanding Dementia Conference 2016

On February 12, 2016, The Elder Law Practice of David L. McGuffey will host a one of a kind event in Dalton. Nationally known speakers will be presenting much needed information regarding how to work with individuals who have diminished or diminishing capacity. Our speakers include:

Peter V. Rabins, MD, MPH is a Professor of the Practice at the University of Maryland Baltimore county (UMBC), Professor of Psychiatry, part time, at the Johns Hopkins School of Medicine, and a member of the Berman Bioethics Institute of the Johns Hopkins University. He was the founding director of the Division of Geriatric Psychiatry and the first holder of the Richman Family Chair in Alzheimer Disease and Related Disorders at the Johns Hopkins School of Medicine. His career has focused on the psychiatric and behavioral symptoms of neurological diseases including the dementias, as well as geriatric mood disorders, and serious mental illness in the elderly. He has published more than 300 articles and book chapters and is an author or co-author of 8 books including the 36_Hour Day, Practical Dementia Care, The Why of Things, and Getting Old without Getting Anxious.

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Have I committed Medicaid fraud if I use a non-lawyer to help with my Medicaid application?

The answer is that it depends on how you report the payment.

It is illegal for a non-lawyer to practice law without a license. O.C.G.A. § 15-19-51. For that reason, a non-lawyer cannot legally give you anything of value if he or she is charging you for services that are considered the practice of law. Because the non-lawyer's contract is illegal, Medicaid should treat your payment as if you made a gift to the non-lawyer.

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The ABLE Act

The ABLE Act has slowly rolled out as different States look to implement it. Georgia currently has two bills in the House that would allow Georgia residents to establish ABLE accounts. We have posted an article for individuals seeking information regarding the ABLE Act. You can find it at: http://www.mcguffey.net/able-act-versus-special-needs-trusts 

If you have questions about the ABLE Act, or about special needs trusts, call us at (706) 428-0888.

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Alzheimer's disease: What it is and early signs

Alzheimer's Disease is a neurocognitive disorder. It is one of many different types of dementia and is described in the APA's Diagnostic and Statical Manual of Mental Disorders.

Specific criteria are required for either a probable or possible diagnosis. A probable diagnosis includes family history of the disease, plus clear evidence of loss of memory, steadily progressive, gradual decline in cognition without extended plateaus, and no evidence of other contributing factors (e.g., infections or other mental disorders). A possible diagnosis is made if the above is present without family history.

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Medicaid Planning: Don't try this at home

If you think Medicaid is confusing, you have some good company. A number of federal judges have arrived at the same conclusion. The following quote appears in Cherry v. Magnant, 832 F. Supp. 1271 (S.D. Ind. 1993):

The federal and state Medicaid statutes have been described as the regulatory equivalent of the "Serbonian bog." See John Milton, Paradise Lost, bk. 2, 1.592 ("A gulf profound, as that Serbonian bog Betwixt Damiata and Mount Casius old, Where armies whole have been sunk."). These regulations have also been characterized as "almost unintelligible to the uninitiated," Friedman v. Berger, 547 F.2d 724, 727 n.7 (2nd Cir. 1976) (Friendly, J.), cert denied, 430 U.S. 984, 52 L. Ed. 2d 378, 97 S. Ct. 1681 (1977); as an "aggravated assault on the English language, resistance to attempts to understand it"; Friedman v. Berger, 409 F. Supp. 1225, 1225-26 (S.D.N.Y. 1976); and by this circuit as "labyrinthinan." Roloff v. Sullivan, 975 F.2d 333, 340, n. 12 (7th Cir. 1992).

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Questions regarding Health Reform

If you are searching for answers regarding health reform, otherwise known as Obamacare, one of the best places to look is on the Kaiser Family Foundation website. At their Frequently asked questions page (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/), KFF answers questions such as "Can I be charged more if I have a pre-existing condition?" (http://kff.org/health-reform/faq/health-reform-frequently-asked-questions/#question-can-i-be-charged-more-if-i-have-a-pre-existing-condition). Other more general information is available at http://kff.org/health-reform/.

The official government website tp find information regarding marketplace health plans is https://www.healthcare.gov/. A great place to start is the Quick Guide to the marketplace, at https://www.healthcare.gov/quick-guide/.

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Mandatory reporters

Certain individuals are required to report elder abuse, or abuse of an at-risk disabled adult. In that regard, Georgia law provides as follows:

O.C.G.A. § 30-5-4.  Reporting of need for protective services; manner and contents of report; immunity from civil or criminal liability; privileged communications

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Self-neglect

Self-neglect is characterized as the behaviors of an elderly person that threaten his/her own health or safety. Self-neglect generally manifests itself in an older person's refusal or failure to provide himself/herself with adequate food, water, clothing, shelter, safety, personal hygiene, and medication (when indicated). For the purpose of this study, the definition of self-neglect excludes a situation in which a mentally competent older person (who understands the consequences of his/her decisions) makes a conscious and voluntary decision to engage in acts that threaten his/her health or safety.

Signs and Symptoms of self-neglect

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Neglect

Neglect is the refusal or failure to fulfill any part of a person's obligations or duties to an elder. Neglect may also include a refusal or failure by a person who has fiduciary responsibilities to provide care for an elder (e.g., failure to pay for necessary home care service, or the failure on the part of an in-home service provider to provide necessary care). Neglect typically means the refusal or failure to provide an elderly person with such life necessities as food, water, clothing, shelter, personal hygiene, medicine, comfort, personal safety, and other essentials included as a responsibility or an agreement.

Georgia law defines neglect as the absence or omission of essential services to the degree that it harms or threatens with harm the physical or emotional health of a disabled adult or elder person."Essential services" means social, medical, psychiatric, or legal services necessary to safeguard the disabled adult's or elder person's rights and resources and to maintain the physical and mental well-being of such person. These services shall include, but not be limited to, the provision of medical care for physical and mental health needs, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, and protection from health and safety hazards but shall not include the taking into physical custody of a disabled adult or elder person without that person's consent.

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Abandonment

Abandonment is the desertion of an elderly person by an individual who has assumed responsibility for providing care or by a person with physical custody of an elder.

Signs and Symptoms of abandonment

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Financial exploitation

Financial or material exploitation is the illegal or improper use of an elder's funds, property, or assets. Examples include but are not limited to cashing checks without authorization or permission; forging an older person's signature; misusing or stealing an older person's money or possessions; coercing or deceiving an older person into signing a document (e.g., contracts or a will); and the improper use of conservatorship, guardianship, or power of attorney.

Georgia law defines exploitation as the illegal or improper use of a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for one's own or another's profit or advantage.

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Emotional abuse

Emotional or psychological abuse is the infliction of anguish, emotional pain, or distress. Emotional or psychological abuse includes but is not limited to verbal assaults, insults, threats, intimidation, humiliation, and harassment. In addition, treating an older person like an infant; isolating an elderly person from family, friends, or regular activities; giving an older person a "silent treatment"; and enforced social isolation also are examples of emotional or psychological abuse.

Signs and Symptoms of emotional or psychological abuse

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Sexual abuse

Sexual abuse is nonconsensual sexual contact of any kind with an elderly person. Sexual contact with any person incapable of giving consent also is considered sexual abuse; it includes but is not limited to unwanted touching, all types of sexual assault or battery such as rape, sodomy, coerced nudity, and sexually explicit photographing.

Georgia law defines sexual abuse of an at-risk adult as: the coercion for the purpose of self-gratification by a guardian or other person supervising the welfare or having immediate charge, control, or custody of a disabled adult or elder person to engage in any of the following conduct:

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Physical abuse

Physical abuse is the use of physical force that may result in bodily injury, physical pain, or impairment. Physical abuse may include but is not limited to such acts of violence as striking (with or without an object), hitting, beating, pushing, shoving, shaking, slapping, kicking, pinching, and burning.The unwarranted administration of drugs and physical restraints, force-feeding, and physical punishment of any kind also are examples of physical abuse.

Signs and Symptoms of physical abuse 

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Types of elder abuse

Abuse of disabled adult or person is 65 years of age or older occurs when someone intentionally causes harm or puts someone at risk for harm.  Neglect occurs when someone intentionally or unknowingly withholds basic necessities or care. Self-neglect refers to a person’s inability to provide care and support to himself or herself. At-risk adult abuse can take several forms, including:

Physical abuse - using physical force to coerce or to inflict bodily harm. It often, but not always, causes physical discomfort, pain or injury. It may include the willful deprivation of essential services, such as medical care, food or water.

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The cost of nursing home care: Could it be as high as $730,000?

On October 16, 2015, USA Today reported (see link below) that nursing home care could run as high as $730,000. It told the story of Randy and Mary Kaump, who care for Randy's 97 year old monther, Janis. Janis has been a nursing home resident for four years, paying $13,000 per month. So far, she has depleted her savings, with Randy and Mary chipping in an additional $100,000 of their own money. In Georgia, the cost of care is hovering around $7,000 per month, so the bills are lower. Unfortunately, for most families $7,000 per month isn't nearly low enough.

Stories like this are all too common, but even more common is the story of a spouse depleting his or her savings to pay for a sick spouse's care. Although there is nothing wrong with paying for your own care, most people don't have that much to fall back on so paying for care could mean the healthy spouse has nothing to use for his or her own retirement needs. Would it make a difference if you knew there's help out there?

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Using mySocialSecurity

Social Security recently announced that you can use your online account to get a replacement Medicare card if your card is lost or damaged. You can also get statements from Social Security regarding your earnings, and estimate regarding future benefits.

Among other things you can do, you can get a letter with proof of your benefits. You can manage your account, change your address, start or change your direct deposit, and get a replacement SSA-1099 or SSA-1042S for your taxes.

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