Archive for August, 2010

Fight for Your Right to Choose Life-Sustaining Treatments!

Tuesday, August 24th, 2010

Long-term health care planning is a dodgy process in that you must stand firm about how you expect to be cared for in the event of your incapacitation or inability to make critical medical decisions. This process helps people think about the kind of care they wish to receive should you need a spouse, loved one or friend to make these life and death decisions for you. In California, a Power of Attorney for Health Care, also referred to as PACH, is the legal document that allows patients to choose who will speak for them should they become unable to speak for themselves.

Sadly, a health care provider who confronts an emergency situation may lack the time and opportunity to communicate with a terminally ill patient’s chosen representative. For this reason, California law permits treating physicians to confer with their patients to define acceptable types of life-sustaining treatment should a medical decision involving issues of life support arise.

The Physician Orders for Life-Sustaining Treatment, or POLST, converts the patient’s wishes regarding life support into a formal medical order. To make sure that the order has full force and effect the POLST must:

  • Be completed by a health care provider based on the patient’s preferences and medical indications
  • Be signed by the treating physician and either the patient or the patient’s legally recognized health care decision maker
  • Be prepared on a brightly colored pink form that is easily recognized by emergency care providers and hospital staff
  • Be filed on the first page of the patient’s medical file and transferred with that file to all future health care providers.

Doctors are required by law to honor the preferences of those patients who have chosen to use this legal document as a guideline that defines appropriate future care. However, the POLST may be changed or even revoked by the physician, patient, or patient’s health care decision maker at any time should the circumstances warrant it.

Do you feel prepared for this type of emergency medical decision-making? If not, contact a qualified Elder Law attorney who can walk you through the process of preparing for this type of situation and avoiding medical mistakes that may  mean the difference between life and death.

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The Top 10 Things to Know About Estate Planning

Tuesday, August 17th, 2010

Estate planning is the process of anticipating and arranging for the closure of an estate when someone passes away. Typically, Estate planning tries to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. Guardians are often designated for minor children and beneficiaries in situations of incapacity.

Here are 10 things you must know about estate planning before you get started.

1. An estate plan has several elements:

  • A Will
  • Assignment of Power of Attorney
  • A living will or health-care proxy (medical power of attorney)
  • A trust

When putting together your plan, you need to be mindful of both federal and state laws governing estates. That’s where your elder law attorney’s expertise really kicks in. And remember, no matter your net worth, it’s important to have a basic estate plan in place. Such a plan ensures that your family and financial goals are met after you die.

2. Take a full inventory of your assets to start.

Doing this allows you to have a full picture of everything you need to protect or want to leave to your heirs. Things to include are: your investments, retirement savings, insurance policies, and real estate or business interests. Ask yourself three questions: Who do you want to inherit your assets? Who do you want handling your financial affairs if you’re ever incapacitated? And, who do you want making medical decisions for you if you become unable to make them for yourself?

3. Create a solid will.

A will tells the world exactly where you want your assets distributed when you die. It’s also the best place to name guardians for your children. Dying without a will — also known as dying “intestate” — can be costly to your heirs and leaves you no say over who gets your assets. Even if you have a trust, you still need a will to take care of any holdings outside of that trust when you die.

4. Setup a trust; they aren’t just for the wealthy.

Trusts are legal mechanisms that let you put conditions on how and when your assets will be distributed upon your death. They also allow you to reduce your estate and gift taxes and to distribute assets to your heirs without the cost, delay and publicity of probate court, which administers wills. Some also offer greater protection of your assets from creditors and lawsuits.

5. Discuss your estate plans with your heirs; this may prevent disputes or confusion later.

Inheritance can be a loaded issue. By being clear about your intentions, you help dispel potential conflicts after you’re gone.

6. The federal estate tax exemption — the amount you may leave to heirs free of federal tax — changes regularly.

The estate tax hit $3.5 million in 2009, but was phased out completely in 2010, but only for a year. Unless Congress passes new laws between now and then, the tax will be reinstated in 2011 at $1 million.

7. You may leave an unlimited amount of money to your spouse tax-free, but this isn’t always the best tactic.

By leaving all your assets to your spouse, you don’t use your estate tax exemption and instead increase your surviving spouse’s taxable estate. That means your children are likely to pay more in estate taxes if your spouse leaves them the money when he or she dies. Plus, it defers the tough decisions about the distribution of your assets until your spouse’s death.

8. There are two easy ways to give gifts tax-free and reduce your estate.

You may give up to $13,000 a year to an individual (or $26,000 if you’re married and giving the gift with your spouse). You may also pay an unlimited amount of medical and education bills for someone if you pay the expenses directly to the institutions where they were incurred.

9. There are ways to give charitable gifts that keep on giving.

If you donate to a charitable gift fund or community foundation, your investment grows tax-free and you can select the charities to which contributions are given both before and after you die.

10. Find a trust Elder Law attorney to consult with. Many of these tasks are more complicated than they appear on the surface and it will end up saving you and your heirs a lot more money down the line if these documents are prepared correctly and managed properly.

Get more great information on money management at CNNMoney.com.

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Conservatorship Basics

Tuesday, August 10th, 2010

If your spouse of other loved one becomes incapacitated without having a proper power of attorney prepared for health care (PAHC) or a durable power of attorney for financial matters (DPAFM), a conservatorship may be needed. In a conservatorship, the court appoints a conservator to take charge of the incapacitated person’s (the conservatee) personal needs, financial matters or both.

In a conservatorship, the court determines that the conservatee does not have the sufficient capacity to care for their own personal needs or make decisions. In a conservatorship of the estate, the court determines that the conservatee does not have the legal capacity to enter into transactions involving financial matters.

How to Establish a Conservatorship

To create a new conservatorship, you need a court proceeding to determine whether the person in question is indeed considered incapacitated according to the law. The judge tries to put the best interests of the conservatee first so he/she will carefully consider the best person to be put in this position in this order:

  • First choice is always the spouse, domestic partner, or other nominee
  • Second- an adult child or the child’s nominee
  • Third- a sibling or sibling’s nominee
  • Last- any other eligible person or entity (appointed attorney would work here)

The Conservator’s Responsibilities

The conservator’s primary role is to ensure that the conservatee’s needs are met. The duties include: making decisions about their living arrangements and daily care like planning for the conservatee’s meals, clothing and health care.

A conservator of the estate handles the financial matters which include:

  • Filing an Inventory and Appraisal document with the court; this document lists all the assets owned by the conservatee and the value of each on the date the conservator was appointed.
  • Paying the conservatee’s bills and expenses
  • Making appropriate investments on their behalf
  • Applying for entitlement benefits
  • Keeping financial records and filing periodic accountings with the court

All conservators are required to have a copy of the Judicial Counsel of California’s Handbook for Conservator that can be viewed online at courtinfo.ca.gov/selfhelp, under the “Seniors” heading.

Unlike an Agent under a PAHC or DPAFM, a conservator must submit to the court:

  • Formal written documents informing the court of address changes for all relevant persons.
  • Regular accountings that explain how the conservatee’s finances were handled.
  • Intentions to sell, abandon or give away any of the conservatee’s personal or real property.
  • Any other matters that the court orders the conservator to report on.

Unlike a PAHC or DPAFM Agent, the conservator may not resign without first obtaining the court’s permission. If you are in this situation or would like to plan ahead in case the instance of incapacitation happens to your family, contact one of our attorneys today for a free consultation. Being prepared is the best way to avoid this confusing situation.

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What Does Medi-Cal Cover Anyway?

Wednesday, August 4th, 2010

California’s medical assistance program, otherwise known as Medi-Cal, pays for “medically necessary” health care such as:

  • Physician visits
  • X-ray and laboratory tests
  • Hospital and nursing-home care
  • Adult day health services
  • Home health care
  • Certain prescription drugs excluded as a Medicare Part D benefit
  • Prosthetic and orthopedic devices*
  • Hearing aids*
  • Medical equipment
  • Ambulance services
  • Hospice care

But there are several caveats to this coverage. First, Medi-Cal will only cover these costs and services if you use previously accepted Medi-Cal providers. And, if you qualify for full Medi-Cal benefits or have Medi-Cal with a share of cost (SOC) under $500, Medi-Cal will also cover your Medicare Part A and B deductibles and copayments, and pay your monthly Medicare Part B premium ($110.50 in 2010).

Share of cost (SOC)- “Share of cost is a term that refers to the amount of health care expenses a recipient must accumulate each month before Medi-Cal begins to offer assistance. Once a recipient’s health care expenses reach a predetermined amount, Medi-Cal will pay for any additional covered expenses for that month. Share of cost is an amount that is owed to the provider of health care services, not to the state.”

You can use Medi-Cal with either:

  • Original Medicare
  • Medicare Advantage (MA) plan

If you choose Original Medicare and fee-for-service Medi-Cal, make sure your doctor or hospital accepts Medi-Cal as well as Medicare. You must show both your Medicare card and your Medi-Cal Benefits Identification Card (BIC) to your doctor and other providers before receiving services, so they can bill Medicare and Medi-Cal directly. Medicare and Medi-Cal will make payments directly to the providers. Most dually eligible beneficiaries choose this option.

If you choose a Medicare Advantage (MA) plan and fee-for-service Medi-Cal, present your BIC to the network providers of the MA plan so they can bill Medi-Cal for any cost-sharing (i.e., deductibles, copayments and coinsurance).

For services covered only by Medi-Cal, such as long-term care in a nursing home, Medi-Cal is solely responsible. Medi-Cal may also pay for certain in-home services through In-Home Supportive Services (IHSS) when you need long-term care.

The bottom line is, yes Medi-Cal is confusing, time consuming and sometimes difficult to qualify for. The attorneys at the California Elder Law Center know these regulations inside and out and have decades of experience helping individuals just like you qualify for and receive all the benefits they need. Call 800-500-6700 for a free Medi-Cal benefits consultation with one of our expert attorneys. You can keep your home and other assets while also receiving excellent care.

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