This means that if a vet served in Vietnam between January 9, 1962 to May 7, 1975, and has been diagnosed with Parkinson’s disease, they are presumed to have been exposed to toxic chemicals. They no longer have to prove that a connection between their disease and their military service. This speeds up the application process for disability compensation.

More than 150,000 Veterans are expected to submit Agent Orange claims in the next 12 to 18 months, many of whom are potentially eligible for retroactive disability payments based on past claims.  Additionally, VA will review approximately 90,000 previously denied claims by Vietnam Veterans for service connection for these conditions.  All those awarded service-connection who are not currently eligible for enrollment into the VA healthcare system will become eligible. For pending claims and claims prviously denied, the VA may pay benefits retroactive to the date it received the claim.

Please note that even though the final regulation is published, it is still subject to a 60-day review period by Congress before the VA can begin paying benefits for new claims. The Senate Veterans Affairs Committee is scheduled to hold a hearing on September 23 to review the rule.

You can find out more about this issue from the VA’s Office of Public Health and Environmental Hazards.

You can click here to reach the Agent Orange Disability Compensation page.

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.

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.

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.

• 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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Over 40% of people getting close to 65 will need to spend time in a nursing home at some point. And the average monthly cost is steadily rising and is around $6k/month now.

So what are your options when faced with the potential of a long term care crisis?

One. Pay the costs out of private funds. This option is great if you’re independently wealthy or have wealthy family to help you out, if not, this is just not going to work.

Two. Purchase long term health care insurance. Purchasing long term care health insurance is becoming more popular as people realize the debilitating costs of full-service long-term care. So if you can afford it, make sure you use a reputable company and buy at least 5 years of in-home, assisted living and nursing home coverage at a minimum of $150 per day with the cost of living rider.

Three. Apply for and qualify for public benefits including Veterans and Medi-Cal benefits. Medi-Cal will pay for minimal in-home care and assisted living and can also be very complicated and stressful to apply for. Here’s why. There are certain assets that are counted against you when applying for Medi-Cal so having an attorney review your assets and decide how to treat them will help your chances of keeping your hard-earned possessions as well as qualify for the benefits you need now. These items may include your home, car, whole life insurance, household furnishings, cash at hand, bonds, savings, stocks, retirement accounts, etc. Some of these items may need to be transferred to someone else or used up in order to qualify for your benefits.

But the rules have changed! Congress passed legislation that majorly affects Medi-Cal Nursing Home benefits. This new law imposes new restrictions on the ability of the elderly to transfer their assets before qualifying for coverage.

Some of the Provisions Include:

• The look back period is extended from 3 to 5 years.
• The value of a house that can be exempt is $500,000.
• Annuities and many other planning tools will be eliminated.
• Monthly gifts are severely curtailed.

We strongly encourage adult child caretakers and seniors to readjust your long-term care planning or start planning now. Pre-planning is more critical than ever to maximize the possibility of saving your family’s assets and getting the senior the quality long-term care coverage they will likely need. Contact us today for a free consultation with one of our skilled Elder Law attorneys. Call 562-627-9600

The truth is, creating these documents is often left to the last minute and is rarely considered in advance when you have time to think clearly through the process. Most people don’t even realize they need a will and powers of attorney. Reasons given might include: cost, difficulty in finding time to see an attorney, reluctance to contact an attorney, or difficulty in finding an attorney whom they feel will help them.
The result of this lack of consideration: contacting online services such as LegalZoom.com, or buying programs that allow you to create your own documents. While these may seem fast and easy, this is the perfect “buyer beware” scenario just waiting to backfire on you.

In fact, trying to save money with “do-it-yourself” legal documents can have very expensive consequences. LegalZoom.com, for example, is the target of a class action lawsuit in California, as reported in Elder Law Answers recently.

The article as reported goes like this. “A man with only a few months to live asked his niece to help him execute a will and living trust using LegalZoom. The niece believed the advertising on the website that the documents would be legally binding. Furthermore, it was represented that if there was any trouble with the documents, the customer service department would help resolve them.

In actuality, the financial institutions that held the man’s money refused to transfer any money into the trust because they maintained that the documents were not legally valid. The customer service department apparently provided no assistance. After the man’s death, it cost thousands of dollars to rectify the damage caused by reliance on the LegalZoom documents.” Not exactly the scenario you want to have happen to you, right?

And, you still pay for the preparation of the LegalZoom documents. Furthermore, the fine print on the website states that “LegalZoom is not a law firm, does not act as your attorney and is not a substitute for the advice of an attorney. Rather, it helps you represent yourself…” Wow! So why are they taking on the responsibility of preparing your legal documents? They don’t even have a real attorney on staff!

Basically, any documents developed are based on a short questionnaire, which may not ask the appropriate questions for your circumstances. Furthermore, any documents developed online, or from a purchased program will not be state specific, which can be an issue for power of attorney documents and wills. You, your executor or agents may find the documents inadequate or invalid when it is too late to rectify the damage.

Another area where failing to consult an attorney can have unexpected and expensive results is in the preparation of your living trust or revocable trust. All too often, non-attorneys are marketing these documents, using standard forms that are “customized” for the client. Remember that your situation is different and should be addressed specifically so that your documents reflect your entire set of circumstances, are legally binding and professionally prepared and filed.

Get real, professional legal advice with a free consultation with one of our attorneys.

Call 888-500-6700 or email info@calelderlaw.com

Below are some additional rules you may not know that can help you or your spouse more easily qualify for and/or continue receiving your veteran’s benefits.

The New Legislative Rule

Currently, if you can prove that you medically and financially should have received an award up to 12 months before you filed, the VA may (might, maybe, could) give you the award for the 12  prior months. The letters veterans receive on your benefits eligibility started changing a few months ago, so read all the correspondence relating to your approval application carefully.  You would need a physician’s evaluation that states as of ABC month, the applicant needed XYZ help.  If you do qualify for the additional back payments this is definitely worth exploring!

What happens if you are a veteran with a sick spouse?

This question comes up all the time in our practice. While the veteran has to qualify for a spouse to benefit (unless they are widowed), what many do not realize is that if the medical costs of the spouse depletes their combined monthly income, the veteran is entitled to file as a “veteran with a sick spouse” and would be eligible for $1290 a month.  That extra cash could be just enough to fill the gap and keep you afloat. This is a common gap that many couples do not even know they could qualify for.

Providing Care at Home

Let’s say you are the veteran (or surviving spouse) and you are being cared for in a home by a family member or other non-licensed healthcare individual, you are required to call the primary doctor or nurse and give monthly updates as to how the veteran or widow is doing.  This is really just you checking in but it is a crucial step for deducting the caregiver’s cost.  Again this is if the care is being provided by a non-licensed healthcare individual. Many people are unaware of this requirement, and if you have not done this in the past, you need to start doing this to ensure there are no issues when the yearly EVR (Eligibility Verification Report) comes due. 

Contact our Veterans Benefits Specialist Sean McGuire today to learn more about getting all the VA benefits you are owed. Call (562) 920-6100 to find out more today.

Contact Sean McGuire @ (562)920-6100

General Qualifications for Non-Service Connected Aid and Attendance

Veteran, Widowed Spouse, and Dependent or Disabled Child (Any May be a Claimant)

• Veteran Must have Served at Least Ninety Days Active Duty with One Day of the Ninety During a Qualified War Period (Ninety Days Must Generally be Consecutive, with Some Exceptions)

• Veteran Must have had an “Other Than Dishonorable Discharge”

• Claimant’s Physician Must Declare Him/Her as Housebound and in Need of Assistance from Another Individual, Which May Include Services Offered by Assisted Living

• Claimant Should have Less than $80,000.00 in Household Assets; Excluding Primary Home, Car, and Personal Belongings (If Assets are Jointly Owned by Other than Spouse, Only the Claimant’s Share is Generally Countable.  In the Case of a Married Veteran, Both His/Her Assets are Countable.  Although $80k is Typically the Asset Cap, the VA May Also Consider the Claimant’s Life Expectancy and Demand Lower Total Assets.  In the Case of Excessive Assets, It May be Best to Consult an Elder Law Attorney)

• Claimant’s Household Out-of-Pocket Yearly Medical Expenses Must Exceed or Come Close to His/Her Total Yearly Household Gross Income (Total Yearly Cost of Assisted Living is Typically Considered a Medical Expense)

• Widowed Spouse Must have been Married to the Veteran for at Least One Year, OR have had Children by the Veteran if Married Less than One Year, AND Never Remarried

• Widowed Spouse Must have been Living with the Veteran at the Time of the Veteran’s Death, Unless the Separation was Due to Medical or Military Reasons (There May be Some Exceptions Related to Separations Due to Abuse)

• Minor or Disabled Adult Children May Qualify for Limited Benefits on Their Own

2010 Maximum Pension Rates for Aid and Attendance

Single Veteran                          $1,644.00 Per Month or $19,728.00 Per Year

Married Veteran                       $1,948.00 Per Month or $23,376.00 Per Year

Widowed Spouse                     $1,056.00 Per Month or $12,660.00 Per Year

Veteran Married to Veteran      $2,400.00 Per Month or $28,800.00 Per Year

Once Awarded Aid and Attendance or Housebound Status, a Veteran May Obtain Free Medications, Medical Equipment, Incontinence Supplies, Glasses, and Hearing Aides from the VA Hospital/Clinic via U.S. Mail Without Going to the VA Clinic or Hospital.  A Separate Application Must be Made Through the Health Care System.

**Note:  Each VA Claim is Unique and the Above Criteria is Generic in Nature and May Not be Applicable to Each Claimant.

Elder Law encompasses many different fields of law which is important to note because the legal problems that affect the elderly are continuously growing in number. Current laws and regulations are also becoming more complex and therefore more challenging for you the adult child of the senior. Attorneys that specialize in dealing with the elderly must have a broad understanding of the laws that impact a given situation to avoid future problems for the senior and their heirs.

Areas of Elder Law Include:

• Preservation/transfer of assets seeking to avoid spousal impoverishment when a spouse enters a nursing home
• Medicaid
• Medicare claims and appeals
• Social security and disability claims and appeals
• Supplemental and long term health insurance issues.
• Disability planning, including use of durable powers of attorney, living trusts, “living wills,” for financial management and health care decisions, and other means of delegating management and decision-making to another in case of incompetency or incapacity.
• Conservatorships and guardianships
• Estate planning, including planning for the management of one’s estate during life and its disposition on death through the use of trusts, wills and other planning documents
• Probate
• Administration and management of trusts and estates
• Long-term care placements in nursing home and life care communities
• Nursing home issues including questions of patients’ rights and nursing home quality
• Elder abuse and fraud recovery cases
• Housing issues, including discrimination and home equity conversions
• Age discrimination in employment
• Retirement, including public and private retirement benefits, survivor benefits and pension benefits
• Health law
• Mental health law

As with any specialty attorney, most Elder Law attorneys do not specialize in every one of these areas. So when an attorney says he/she practices Elder Law, find out which of these matters he/she handles and has years of expertise doing. Remember to hire the attorney who regularly handles matters in the area of concern in your particular case. He/she should also know enough about the other fields related to your issue to question whether the action being taken might be affected by laws in any of the other areas of law on the list. For example, if you are going to rewrite your estate plan and your spouse is ill, the estate planner needs to know enough about Medi-Cal to know whether it is an issue with regard to your spouse’s inheritance and legal rights after the spouses passing.

Attorneys who are members of NAELA, the National Academy of Elder Law Attorneys, are focused on continual education in the many areas that elder law touches; so you should ask your elder law attorney if they are affiliated with NAELA. Attorneys who primarily work with the elderly bring more to their practice than an expertise in the appropriate area of law. They bring a long standing knowledge of senior’s needs and that allows them and their staff to empathize with some of the challenging physical and mental difficulties that often accompany the aging process. Any high quality elder law attorney will understand the afflictions of the aged and can therefore offer advice that can more easily determine the best course of action for the client. They are more aware of real life problems, health and otherwise, that tend to overtake us as we age. Elder law attorneys are also usually tied into a system of social workers, psychologists, caregivers and other elder care professionals who may be of assistance to you. All of these things will hopefully make you more comfortable when dealing with them and ease your way as you try to resolve your legal problem.