Elder Law Blog

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The Impact of Caregiving

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."

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Article: Patients With Dementia Present Communication Challenges In Hospice Care

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)

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Medicare Covered Home Health Services

Medicare Home health services

How often is it covered?

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When should I apply for Social Security Benefits?

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 

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Patient’s Right to Direct Health Decisions Affirmed

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.”

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Georgia changes method for awarding home and community based services

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.

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Survivorship deed was fraudulent conveyance

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.

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Judgment denied where creditor attempted to serve complaint on semi-conscious nursing home resident

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.

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Are nursing home evictions on the rise?

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).

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Adult child has no right to compel a parent’s new spouse to provide unimpeded access to the parent

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.

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Locating replacement documents in Georgia

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.

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Special Needs Roundtable

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..

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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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