How to Use Medicare to Pay for In-Home Care

350xIt’s not easy to get Medicare coverage for in-home care, and when you do it’s strictly limited. That said, it can be a godsend when you’re faced with a sudden medical crisis or downturn in your loved one’s condition. Medicare coverage is most common when your loved one is being discharged from the hospital or a rehabilitation facility. You’ll contract through a Medicare-certified agency for a period of skilled nursing care and therapy that’s tied to a certain period of expected recovery.

The good news is that Medicare coverage is easier to get than it used to be, and it should become easier still.
Read full article…

Is your Medicare ready for 2014?

The new year is fast approaching. Here are a few things to ask yourself to make sure you’re ready for 2014.

The Medicare Blog

The new year is fast approaching. Here are a few things to ask yourself to make sure you’re ready for 2014.

1. Do you have the right insurance card to use when you go to the doctor in 2014?
If you changed your health or drug plan during Medicare Open Enrollment and don’t get your new card or welcome packet by January 1st, contact your plan for help. If you need to fill a prescription right away, find out how to fill a prescription without your card.

If you changed from a Medicare Advantage Plan (like an HMO or PPO) back to Original Medicare, use your red, white, and blue Medicare card when you go to the doctor. Get a new card if you lost or damaged yours, or need to update your information.

2. Did you budget for next year’s Medicare Part B deductible?


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How Do Divorce and Remarriage Affect Social Security Benefits?


It is common knowledge that husbands and wives are entitled to collect Social Security benefits on their spouses’ work records. Less well known is that this benefit applies to divorced spouses as long as the spouse has not remarried. Divorced spouses are even entitled to survivor benefits in certain circumstances.

As a spouse, you have the option of claiming a Social Security retirement benefit based on your own earnings record or collecting a spousal benefit equal to half of your spouse’s Social Security benefit. You are automatically entitled to whichever benefit is higher and you can collect on your spouse’s record even if you have never worked yourself.

As a divorced spouse you can collect benefits on your ex-spouse’s record, even if the ex-spouse has remarried and even if the ex-spouse’s new spouse is collecting on the same record.

But to get this benefit, you must meet the following requirements:

  1. You were married for at least 10 years
  2. You are at least 62 years old
  3. Your ex-spouse is eligible for retirement benefits
  4. You are currently unmarried

If your ex-spouse has not yet applied for retirement benefits but can qualify for them, you can receive benefits on his or her record provided you have been divorced for at least two years.

In addition, if you have reached full retirement age and are eligible for both a spouse’s benefit and your own retirement benefit, you have a choice. You can receive only the spouse’s benefit and delay receiving your own retirement benefits until a later date. The longer you delay taking your own benefits, the higher the benefit you receive later will be (up to age 70).

If you remarry, you cannot receive benefits on your former spouse’s record unless the new marriage ends (by death, divorce, or annulment).

Survivors Benefits

If you are the divorced spouse of a worker who has passed away, you could still be eligible for survivors benefits if the marriage lasted 10 years or more. Survivors benefits are equivalent to the deceased spouse’s full Social Security benefit amount.

However, if you remarry before the age of 60, you cannot collect survivors benefits (unless the later marriage ends for any reason). If you remarry after age 60, you can still receive survivors benefits based on your former spouse’s record. However, if your new spouse is also collecting Social Security benefits and you would receive a higher amount based on the new spouse’s work record, you will receive the higher amount.

Additionally if you are caring for a child under age 16 or disabled who is getting benefits on the record of your former spouse, you would not have to meet the 10-year marriage rule.

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How will the Affordable Care Act affect Seniors…

How will the Affordable Care Act affect Seniors…

How will the ACA (Obamacare) affect senior citizens

Hold on…Should you sign that Nursing Home Admissions Agreement??? Not so fast…

nursing home
“Read the agreement carefully before signing. Nursing Home Agreements can be complicated and confusing”

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

This article comes from my December Elder Law Answers Newsletter, you can get it free here: Free Elder Law Newsletter

For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
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Courts: Chimps are Not people


Did we need a court to figure this one out…? Interesting news via (CNN) — Three New York courts have rejected one group’s legal effort to grant captive chimpanzees in that state the same rights as a “legal person.”

The Nonhuman Rights Project filed three separate suits on behalf of four chimpanzees in New York state last week in a bid to secure for Tommy, Kiko, Hercules and Leo — all male chimps held in various parts of the state — the “right to bodily liberty.”

The lawsuits asked that the four chimpanzees be moved to a sanctuary “where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America,” the group said.

The group says it will appeal the courts’ decisions.

“These outcomes allow the NhRP to proceed to the appellate courts,” NhRP spokeswoman Stacey Doss told CNN.

Are we really different from animals?

NhRP founder and President Steven Wise said before the suits were filed that he would “be asking judges to recognize, for the first time, that these cognitively complex, autonomous beings have the basic legal right to not be imprisoned.”

Tommy’s owner, Pat Levery, dismissed the notion that he confines the 26-year-old chimp to a prison. Tommy lives in a cage on a trailer lot in Gloversville, New York.

“Totally ridiculous” he said of the lawsuit, which he has not read.

“I’d be happy to show you Tommy’s home, to show you how well he is cared for,” Levery said.

When reached by CNN Monday, he did not know the suit had been rejected.

He said that he was relieved and that he had assumed the lawsuit would not proceed.

The owners of Kiko, Hercules and Leo could not be reached Monday night.

The group said it plans to file more lawsuits across the country on behalf of captive animals “who are scientifically proven to be self-aware and autonomous,” such as elephants, dolphins and whales.


Family Feuds Over Power of Attorney


As part of the network I want to share this article about POAs written by Lori Johnston.

Squabbles over assigning Power of Attorney – who can act on your parent’s behalf – and the decisions made in that role can impact the family dynamic for years to come.

Even when mom or dad plans ahead and creates the Power of Attorney (POA) legal document before they’re impaired by a health condition, there can be ongoing strife among siblings and family members.

Sometimes the decision of who to appoint in the Power of Attorney role, from the parent’s standpoint, is cut and dry. Parents will put their faith in the oldest child, or choose one child over another based on who lives closest or whom they trust because of their skills, especially with financial decisions.

Diana Anderson, a certified elder law attorney and partner with Carluccio, Leone, Dimon, Doyle & Sacks in Toms River, N.J., says clients have told her: “I’m choosing that one; the other one can’t balance their own checkbook.”

In other cases, a parent is suspicious about their child and doesn’t trust them 100 percent with their money. Sometimes if the oldest isn’t chosen, there’s emotional backlash toward parents and siblings because they are insulted by the decision.

Depending on the state, multiple people can be appointed Power of Attorney, but that can result in arguments later, if they cannot agree on a decision. Or if living in a state where there are different types of Power of Attorney, such as for healthcare and financial decisions, the duties can be separated between siblings.

“When it comes to healthcare decision-making, if the child is a nurse or doctor, that child oftentimes is named first because they’re more attuned to health care issues. If the child is a financial planner, they may be named first for financial decision making,” says Ronald Fatoullah, a certified elder law attorney and founder and managing attorney of Ronald Fatoullah & Associates.

The POA Decision Aftermath

If the appointment of POA is smooth and didn’t involve much gnashing of teeth, that doesn’t mean bickering won’t begin once the person granted POA assumes duties related to parents’ financial and medical decisions. Many times, the challenge to the POA happens after the parent passes away, Anderson says.

While the parent is still alive, a sibling may try to trump the person appointed POA by saying their parent was incapacitated when making the decision. When that happens, it can result in an expensive guardianship fight in court.

Here are other common situations seen by elder care attorneys:

  • Sibling rivalry

Ongoing sibling rivalry can chip away at the “power” that someone granted Power of Attorney holds and cause kids to argue over daily and long-term decisions. When the siblings don’t trust the person granted POA, what Anderson often sees happen is constant questioning about decisions. One or multiple siblings may appear to be always on the POA holder’s back, challenging each health care and financial decision, she says.

  • Unwilling to let go

The POA holder must act in the best interest of the person they are representing, even when it comes to making those tough health decisions. “If he or she doesn’t, that individual can be sued,” Fatoullah says.

In one case, Anderson says the sibling who was granted Power of Attorney for health care refused to comply with the mother’s living will. “Another sibling said, ‘Mom said to pull the plug,'” Anderson says. At a bedside hearing, it was determined that the POA appointee was not acting in the mother’s interests and the living will request to withdraw life support was fulfilled.

  • Financial feuds

Once siblings start to question what is happening to their inheritance, the battle over finances heads to court, and it can happen whether the parent is alive or has died.

In a frequent scenario, the person appointed POA may decide to pay themselves back for the expenses of caring for a parent, such as driving them to doctor’s appointments and buying food or medications.

“When one child spends more time taking care of a parent and feels like they should be entitled to more, they can give themselves more,” Fatoullah says.

But the other sibling doesn’t think it’s fair, saying that the POA holder is taking more than their 50-50 share of their inheritance, after their parents’ death.

Even if the decision over granting Power of Attorney isn’t emotional, things can take a turn among families when the POA starts making decisions. Attorneys say resolving sibling rivalry and creating trust among family members can help avoid family feuds over Power of Attorney and costly court battles.


If you have a question about how to create a POA or address a POA issue, feel free to call me.

Regards, Brian


Supreme Court to Decide How Inherited IRAs Are Treated in Bankruptcy:

The Supreme Court has agreed to hear a case that will decide whether inherited individual retirement accounts (IRAs) are available to creditors in bankruptcy. The decision in Clark v. Rameker will resolve a split between the lower courts.

Heidi Heffron-Clark inherited a $300,000 IRA from her mother. Inherited IRAs must be distributed within five years. During the five-year period, Mrs. Clark and her husband filed for bankruptcy. The Clarks argued the IRA was exempt from creditors because bankruptcy law protects retirement funds. A district court agreed with the Clarks, but the 7th Circuit U.S. Court of Appeals reversed in Clark v. Rameker (714 F.3d 559 (2013)), holding that the money in the IRA no longer constituted retirement funds.

Meanwhile, the 5th Circuit U.S. Court of Appeals decided in In re Chilton (674 F.3d 486 (2012)), that funds from an inherited IRA should be exempt. The U.S. Supreme Court will resolve this issue later this term.

For more information about this case, click here.

Useful Elder Law facts and key figures for 2014:

Below are figures for 2014 that are frequently used in the elder law practice or are of interest to clients.

Medicaid Spousal Impoverishment Figures for 2014

The new minimum community spouse resource allowance (CSRA) is $23,448 and the new maximum CSRA is $117,240. The new maximum monthly maintenance needs allowance is $2,931. The minimum monthly maintenance needs allowance remains$1,891.25 (2,365 for Alaska and 2,176.25 for Hawaii) until July 1, 2014.

For the CMS document announcing the 2014 figures, click here.

Medicaid Home Equity Limits

Minimum: $543,000; Maximum: $814,000

Income Cap

The income cap for 2014 applicable in “income cap” states will be $2,163 a month.

Gift and estate tax figures

Federal estate tax exemption: $5.34 million for individuals.

Lifetime tax exclusion for gifts: $5.34 million.

Generation-skipping transfer tax exemption: $5.34 million.

The annual gift tax exclusion remains at $14,000.

Long-Term Care Premium Deductibility Limits for 2014

The Internal Revenue Service has announced the 2014 limitations on the deductibility of long-term care insurance premiums from taxes. Any premium amounts above these limits are not considered to be a medical expense.

Attained age before the close of the taxable year Maximum deduction
40 or less $370
More than 40 but not more than 50 $700
More than 50 but not more than 60 $1,400
More than 60 but not more than 70 $3,720
More than 70 $4,660

Benefits from per diem or indemnity policies, which pay a predetermined amount each day, are not included in income except amounts that exceed the beneficiary’s total qualified long-term care expenses or $330 per day (for 2014), whichever is greater.

For these and other inflation adjustments from the IRS, click here.

Medicare Premiums, Deductibles and Copayments for 2014

  • Basic Part B premium: $104.90/month (unchanged)
  • Part B deductible: $147 (unchanged)
  • Part A deductible: $1,216 (was $1,184)
  • Co-payment for hospital stay days 61-90: $304/day (was $296)
  • Co-payment for hospital stay days 91 and beyond: $608/day (was $592)
  • Skilled nursing facility co-payment, days 21-100: $152/day (was $148)

Premiums for higher-income beneficiaries:

  • Individuals with annual incomes between $85,000 and $107,000 and married couples with annual incomes between $170,000 and $214,000 will pay a monthly premium of $146.90 (unchanged).
  • Individuals with annual incomes between $107,000 and $160,000 and married couples with annual incomes between $214,000 and $320,000 will pay a monthly premium of $209.80 (unchanged).
  • Individuals with annual incomes between $160,000 and $214,000 and married couples with annual incomes between $320,000 and $428,000 in 2010 will pay a monthly premium of $272.70 (unchanged).
  • Individuals with annual incomes of $214,000 or more and married couples with annual incomes of $428,000 or more in 2010 will pay a monthly premium of $335.70 (unchanged).

Rates differ for beneficiaries who are married but file a separate tax return from their spouse:

  • Those with incomes between $85,000 and $128,000 will pay a monthly premium of  $272.70 (unchanged).
  • Those with incomes greater than $128,000 will pay a monthly premium of $335.70 (unchanged).

For Medicare’s “Medicare costs at a glance,” click here.

Social Security Benefit Changes for 2014

Monthly federal Supplemental Security Income (SSI) payment standard will be $721 for an individual and $1,082 for a couple.

Average monthly Social Security retirement payment: $1,294 a month (was $1,275) for individuals and $2,111 (was $2,080) for couples

Maximum amount of earnings subject to Social Security taxation: $117,000 (was $113,700)