North Carolina's First Elder Law Firm

Thinking of Freedom and Independence with a Twist

It is right to think of our freedom and independence on this Fourth of July weekend. We wave flags, shoot fireworks and join friends and relatives at neighborhood picnics and community celebrations. Rightly, our thoughts are with those serving our country, especially those in harms way. Included in our celebration is the remembrance of wars past and the veterans, living and not, that helped keep our democracy what it is today. The Greatest Generation (those parents and grandparents serving in World War II and Korea) we herald as the very best of them all.     

Sadly, too many of the Greatest Generation are being denied those very freedoms and the independence we cherish. They languish in nursing institutions (while the industry euphemistically calls them homes, that is an absurdity and corrupts everything good about home and what was eulogized in the Wizard of Oz by Dorothy's longing cry, "I want to go Home Toto!"), forced to stay not because of their mental infirmities or physical disabilities, but because many states restrict where Medicaid recipients live and what they want to do. Too many of these profit driven corporate institutional systems operate no differently than a regimented, confining and stinking gulag (a penal system of the Union of Soviet Socialist Republics consisting of a network of labor camps. http://www.merriam-webster.com/dictionary/gulag; see also Pierre Tristam, American Gulag: Nursing Home Profiteers ( Candide's Notebook, September 24, 2007 http://www.pierretristam.com/Bobst/07/cn092407.htm)

Ripe for attack, these gulags are the basis of litigation currently being fought in Florida by a cadre of legal advocacy groups including the AARP Foundation. (See Emily Sachar, Your AARP: The Law, (AARP Bulletin, June 2008). While the argument is that state elected officials and policy makers should not be second-guessed when making choices about medically necessary services, too often those choices are dictated by the nursing institution industry, with its powerful lobbying forces in every state and Congress. Consider that nursing institution confinement is often the most expensive for taxpayers, while other more appropriate residences run at significantly lower costs. If our democratic society declared a mandate of "least restrictive alternative" that must be implemented, it would probably send shock waves through the nursing institution industry, driving the stock value of for-profit companies through the floor. This is exactly what the nursing institution lobby has been able to block.    

What is disappointing (but understandable - the target seems to have been narrowed to achieve the best results under the framework of the Americans with Disabilities Act) about the litigation in Florida is that it is being asserted primarily by persons with disabilities on Medicaid and being forced to reside in nursing institutions. While the plaintiff class may include some of our elders, it does not embrace all of our elders confined in these gulags. These elders, so many of the Greatest Generation, are languishing in nursing institution confinement not by reasoned quality of life determinations, but more often by indiscriminate, even arbitrary dictates. A more cynical, even sinister view is that these decisions are intentional, orchestrated by the unholy alliance of the medical, health care and nursing institution industries.   

Those elders of the Greatest Generation, caught in inappropriate restricted confines of nursing institution gulags, have lost their freedoms and independence. These elders are forced to obey the institutional, medical model regimens that dictate when to get up, what to eat, when to bathe, when to go out and where, and who to see and not see. In too many states, those under confinement are handled and manhandled by untrained staff being paid at the lowest level. Turnover is constant, criminals and sex-offenders are hired without background checks, theft is rampant, and neglect and abuse is documented at alarming rates, even with systemic cover-up.

Many states do little or nothing, listening to the well-planned approach of the nursing institutional lobby that makes sure elected officials are supported in their election campaigns and government and agency officials are promised and given lucrative industry positions and lobbying contracts when they leave so-called public service. Some will whine that everything is within the bounds of law, but it is surely not moral or ethical. It is only within the bounds of law because the nursing institution industry has paid their lobbyists to keep it legal even when it is not for the good of the people, but good only for the for-profit nursing institution industry.

Contact your elected representatives to fight for the freedom and independence of our Greatest Generation, assuring that they are provided the least restricted environment in which to live their remaining days.                     

 

New Medicaid Restrictions Bad News for Family Farms and Businesses

          Family businesses and farms are a fundamental addition to the web of the American economy, most often with innovative jobs for family and community members.  Many family businesses and farms are passed on through generations, providing stability for an extended family.  These small family-run businesses and farms are often fragile to the American market and can be easily hurt by slight government changes to current legislation.  There have been recent new restrictions on Medicaid enacted in the Deficit Reduction Act (DRA), which threaten the livelihood of many family businesses and the success of passing these businesses and farms on to children or grandchildren.

            The recent Medicaid restrictions add two years to the look-back period, from three to five years for the transferring of assets. That means that the government looks back over the 5 years immediately prior to your filing for Medicaid to find any gifts given to others, including the gift of the family business or farm to your children. A penalty period will be imposed if gifting has been found. That brings up another difficult change. The penalty period no longer begins on the date of the gift, but now begins only after you are eligible for Medicaid assistance. 

In most family businesses and farms, the owner between ages 55 and 65 typically engages their children in a discussion regarding a transition of the business or family farm to the next generation. In most circumstances, one or more of the children participates in the family business or family farm, being paid on some sort of discounted wage with the promise of eventual receipt of the family business or family farm.

The way these restrictions impact your family business has to do with the time in which one generation of owners transfer their assets of the business to the next generation of owners, most likely their children. If something were to happen to you, the first generation of the family business owner (a severe health problem, a debilitating injury, or another costly problem) in the five years following the gifting of assets, it could significantly threaten the livelihood of the small business because those assets would still be used to pay for health care expenses since you are still within your look-back period.

            Government legislation is usually in favor of helping small family businesses, but these new Medicaid restrictions are not. They should not be overlooked.  Be mindful of more changes taking place in our Medicaid legislation.

            Let your voice be heard because these and future Medicaid restrictions will hurt our economy, our culture, and our current patchwork healthcare system.

            Let me know if you are interested in getting involved with a grass roots effort to truely make Medicaid available to those who created it in the first plance and who have been the ones who paid the taxes that created it. We can make it a better day for those struggling in the last years of their lives.   

 

NOTE:    Many of the concepts and opinions developed in these blogs have their origins in Eye on Elder Issues, a continuing publication of the National Academy of Elder Law Attorneys. Visit the academy website at www.naela.org 

Alarming Increase in Divorce among the Elderly

Are you and your spouse a happily married couple that plan to spend the rest of your lives together?  If so, what would be your reaction if an attorney told you that in order to keep your current lifestyle you would need to divorce?  This is a situation facing an increasing number of our nation’s elderly.

 

            The reason such an ultimatum occurs is due to the cost of illnesses associated with long term care.  If due to a terminal illness, severe stroke, or some other major illness, a spouse is encouraged to enter a nursing home, the cost will range from $5,000 to as high as $12,000 per month.  After consulting with an elder law attorney, the couple will find that there are only two options made available, either spend all your money on nursing home care, leaving no money for the healthy spouse to live on, or divorce your spouse and remain financially viable, while the chronically ill spouse’s care is paid for by Medicaid.  This is a situation confronting elder members of our society every day.

 

            Recently, elder law attorneys have expressed concern over increasing divorce rates among our nation’s seniors.  In many cases the foreseeable future may find the ill spouse initiating a discussion about financial stability through divorce.  This person may have had a stroke or another physically debilitating health problem. While still competent, he or she may have realized the significant expense of needed medical or nursing home care.  Once realized, the spouse may insist on divorce to protect the well spouse.

 

            For an American society that supports the moral institute of marriage, divorce should not have to be one of the options to dire financial situations faced by our aging population.  Our elders are left with a terribly devastating decision at a time in their lives when they are most vulnerable.  This situation falls, for the most part, on middle-income couples because the wealthy are able to afford the cost of care or long term care insurance and those with no homes and no savings are already qualified for Medicaid.  Thus, middle-income elderly couples are the ones hit the hardest, seeing their options for the future limited to divorce, impoverishment, or suicide.  The typical elderly couple of this income bracket has a house worth less than $150,000, savings of less than $80,000 (including pensions), and a modest income, without considering any incapacitated children or siblings relying on them for support as well.  To most, the least distasteful option is divorce.

           

            The conundrum and sadness of this situation, forcing otherwise content married couples to divorce in order to survive, is an indictment of the morals of our society.  Obviously, future legislative changes will be needed to change the direction of this devastating trend among elderly couples.

 

Many of the concepts and opinions developed in these blogs have their origins in Eye on Elder Issues, a continuing publication of the National Academy of Elder Law Attorneys. Visit the academy website at www.naela.org 

 

         Let me know if you are interested in getting involved with a grass roots effort to truely make Medicaid available to those who created it in the first plance and who have been the ones who paid the taxes that created it.

 

 

         We can make it a better day for those struggling in the last years of their lives.   

Memorial Day Blog Entry May 26 2008

Today we celebrate our veterans and all those serving our country.  We honor the bravery and courage required to put one’s country before one’s self.  It is also a day to recognize those injured or disabled by war.  Estimates of those permanently injured, physically and psychologically, reach in the tens of thousands.  Serving these veterans with special needs is probably more complicated than serving those born with special needs. These veterans and their loved ones can remember when they were able to function normally, and now they must rely on others. If anything, our veterans need more help, because they can remember what is was like to be normal and now know life is not the same.  This Memorial Day vow to become proactive in lobbying our government to better help these people who stood in harms way to defend us all.  Look for ways to better help our service men in need.  It is our responsibility as citizens to do what we can to honor those who have sacrificed themselves for the rest of us.

The Four Core Values

While Elder Law is a unique specialty in the legal profession, Elder Law attorneys embrace the four ethical values that are the heart of their professional conduct: competence, communication, confidences and loyalty.

It is hard for many people to believe that lawyers have core values, let alone ethics, what with the bashing of the legal profession. Just in the last few years, the cynical, even negative swell against lawyers has risen to the level of a national past time. As the butt of jokes on Jay Leno’s Tonight Show, or the target of ridicule on Late Night with David Letterman, lawyers and lawyering often are center stage. There are ample sources for pithy sound bites and crude depictions. If the ethics of any culture are found in its stories and narratives, then the legal profession better look out. The stories and narratives paint pictures that depict too many lawyers violating what our society knows is right. The moral of countless stories or narratives is that lawyers are respected about as much as used car salesmen!

The reality is the great majority of lawyers apply the legal profession’s core values when serving clients. However, little is written about them. The reality is also, that there are a small minority of lawyers caught violating legal ethics and ignoring core values. Too often, the lead sound bites on TV and the newspaper headlines create the illusion that these lawyers are the majority.

The general exception is when the lawyer is yours. Most people believe that their lawyers are competent, have communicated well with them, continually protect their confidences and are loyal to them.

The Four Core Values Applied:

1.     Competence. Elder Law attorneys assure their competence by maintaining their continued education, gaining board certification in elder law as Certified Elder Law Attorneys (“CELA”) or achieving specialization through the North Carolina Bar Association as estate and trust lawyers.

2.     Communication. Elder Law attorneys go to great lengths to maintain timely contact and communication with clients, including the habit of returning calls within 24 hours, and copying clients on all correspondence related to them.

3.     Confidences. Elder Law attorneys protect confidential information of their clients, giving out no confidential information without the client’s expressed permission, unless in circumstances of great harm to the client. Usually, Elder Law attorneys send a written letter of engagement to their clients and specifically confirm those to whom the clients allow the communication of confidential information.

4.     Loyalty. Elder Law attorneys most always tell their clients that their loyalties are directed solely to the client being served. When there are multiple clients (like husband, wife and children), then this requires Elder Law attorneys to know and understand who their clients are from the very beginning.

    
If you and your family are about to see a lawyer, then be sure to ask for an explanation of the core values of lawyering and how those values will be delivered to you if the lawyer is hired.

Silence ISN’T Golden: Has Your Family Had THE TALK?

The Cost of Not Talking. Families tend to avoid talking about difficult topics and the consequences can be costly – both from a financial and emotional perspective – particularly when it comes to long term care and end of life issues. In our experience, families who have navigated the tricky terrain of talking openly with each other about these issues tend to fare better in their long term planning than those who ignore or delay the inevitable. With the holiday season right around the corner, I feel that it is important to write an article entitled, “Has Your Family Had THE TALK?” As you make plans for family gatherings during Thanksgiving, Hanukkah, Christmas or New Years, keep in mind some of the information contained within that may be relevant to you and your family.

The national demographics have begun a dramatic shift towards a population with a greater percentage of citizens over 55, triggering questions concerning the quality of life for our nation’s senior citizens. These discussions have not only reached a fevered pitch in the realm of politics and policies, but also the realities are affecting families on a very personal level. Skyrocketing health care costs, changes to state and national laws regarding Medicaid and Medicare, senior housing alternatives and long term care options are but a few of the issues facing families who have elderly parents and grandparents. Answers may be hard to find and frequently tough to understand.

First PRINCIPLES -- Stop, look, and listen. The best place to begin is by using your powers of observation. At your next family event, take special note of how your parents or grandparents look and behave. Especially if there are notable declines, time to act to put legal protections in place may be running out. However, even for folks who are perfectly okay, it is important to confirm that they are not procrastinating getting their legal ducks in a row.

Don’t Stop Asking. Is Grandma well-groomed? Is Dad having a hard time walking? Can Mom see and hear all that is going on around her? How is Grandpa’s memory? Has Dad lost a lot of weight in a short period of time? If you are at your parent’s home, does it appear to be tidy and clean? Is there food in the refrigerator or cupboards? Answering “no” to one or more of these questions may indicate your family member needs help with some of the activities of daily living. If so, this is a good time to get other family members involved in sharing their own observations and to initiate the first step in opening up the family talk and setting the groundwork for future conversations. It’s critically important that you have and exhibit to those you care for, the mindset that it is entirely THEIR best interests you are looking out for. Nothing contaminates the discussion quicker than the sense that the “helpers” are acting selfishly and trying to advance their own agenda.

It’s No Secret. Families don’t always see eye to eye on many topics. Discussing the well-being of your parents can conjure up memories of old childhood conflicts. When possible, it is important to leave those conflicts at the door and keep in mind the bigger goal of what is best for Mom and Dad. Like any good mediation session, it sometimes helps to identify one person most known for level-headed moderation to act as the point person for managing the dialogue. If it helps, go with a list of all the questions or concerns that require family attention and consensus. Working from a list can help keep everyone on topic and assure nothing is overlooked or forgotten.

Engage Your Compassion! Above and beyond it all, be sure to engage your compassion – with your parents and your siblings. With luck, guidance and some concrete skills you may find this journey together a rewarding one.

For more information, visit our Charlotte Elder Law Firm Website.