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Why Can’t Doctors Recognize this Form of Dementia?

Considerable’s recent article entitled “The second most common type of dementia often goes unrecognized” reports that in one study, nearly 70% of people diagnosed with Lewy body dementia visited three consultants before receiving the diagnosis. For 33% of people with the disease, getting the correct diagnosis took over two years.

The word “dementia” describes a condition affecting a person’s memory and thinking that is a decline from how they used to function. It is severe enough to affect their daily life. Alzheimer’s disease dementia and Lewy body dementia are the two most common types. Lewy body dementia derives its name from the abnormal protein clumps that are seen on autopsies of the brains of people with Lewy body dementia.

A diagnosis of Lewy body dementia comprises two different conditions: dementia with Lewy bodies and Parkinson’s disease dementia. With Lewy body dementia, an individual develops memory and thinking problems before or at the same time as he or she develops movement problems that mirror Parkinson’s disease. In Parkinson’s disease dementia, one who has experienced Parkinson’s disease movement problems for years then also develops trouble with memory and thinking.

The two conditions have many common features. With the memory and thinking problems and movement problems, patients with these conditions can have fluctuations in their alertness and concentration, hallucinations and paranoia, acting out dreams during sleep (known as “REM sleep behavior disorder”), low blood pressure with standing, daytime sleepiness and depression and other symptoms.

The correct diagnosis is vital for patients and families. The diagnosis of Lewy body dementia is frequently missed, because of lack of awareness by physicians, patients, and their families. Research also reveals that the first diagnosis is commonly incorrect. Roughly 26% of people later diagnosed with Lewy body dementia were first diagnosed with Alzheimer’s disease, and 24% were given a psychiatric diagnosis like depression.

With the correct diagnosis, patients and families can seek out resources, such as the Lewy Body Dementia Association, an organization dedicated to helping people living with this disease. This group provides education on Lewy body dementia, helps patients and families know what to expect, connects patients and families to support and resources and helps them find research opportunities.

Reference: Considerable (Aug. 14, 2020) “The second most common type of dementia often goes unrecognized”

 

August 31 – The Deadline for Rolling Back RMDs into Retirement Accounts

President Trump officially signed the CARES Act on March 27, 2020. The Act allows retirement plan owners to skip taking their Required Minimum Distributions (RMDs) in 2020, if they so choose. This is intended to benefit those who are in a good financial position and do not need to take their RMDs during these unsettling times. What about those who already had taken their RMDs for 2020?

This is the subject of a recent article titled “Don’t Miss the August 31 Deadline to Return 2020 Required Minimum Distributions” from The Street.

First, the IRS announced that anyone who had already taken RMDs before the CARES Act became law could return the funds to their retirement accounts. However, the window of time to return the withdrawn funds was pretty short—only 60 days.

On June 23, the IRS extended the time period to Aug. 31, 2020. That seemed like a long time ago, back in late June. But now the clock is ticking, and Aug. 31 is just around the corner!

Note: the repayment is not subject to the singular 12-month rollover limitation, also known as the “once-per-year rollover rule.” And the same repayment applies to beneficiary, or inherited, IRAs.

The ability to rollover funds back into tax-deferred accounts is a help on several different levels. One, the account owner does not have to pay income taxes on RMDs for the year (unless they were Roth accounts, which pay taxes on contributions and not withdrawals). Also, this spring was a rocky one for markets, and returning money into tax-deferred accounts gives the accounts a chance to recover from some significant market swings.

Speak with your estate planning attorney and financial advisor about your RMDs for 2020, and how the CARES Act RMD waiver may apply to your situation.

Reference: The Street (July 29, 2020) “Don’t Miss the August 31 Deadline to Return 2020 Required Minimum Distributions”

 

Social Security Administration Announces Advance Designation for Representative Payees

In April 2020, the Social Security Administration announced that individuals are now able to designate “preferred individual(s) to serve as payee should the need arise.” This designation can be made online though the Administrations “my Social Security” website.

If you are not familiar with Social Security’s “representative payee” program, a ‘rep payee’ is a person or organization who receives social security or SSI benefits for a recipient who is unable to manage benefits on his or her own. Once the rep payee is chosen, benefit payments will be sent to that person. The benefits must be used for the benefit of the person unable to manage the funds and Social Security requires regular reporting on how the benefits are used.

Up to three persons may be designated as a potential representative payee. Contact information for each designation must also be provided.

It is important to note that while this new program permits Social Security to take into account the preference of the person receiving benefits, Social Security still has its own criteria for selective who may actually serve – considering things like the potential rep payee’s criminal record and the nature of his or her relationship to the person receiving benefits. Even so, this new program will allow beneficiaries to have a greater input into management of their affairs, in a way not possible before. It also makes advance designation of a potential representative payee another component of a solid estate plan.

 

 

 

What Is The Latest On The New York Legislation Concerning Medicaid Spousal Refusal?

The last five governors in New York targeted a maneuver called “spousal refusal” for repeal 28 times. Newsday’s recent article entitled “State considers end to ‘spousal refusal’ to pay for nursing home care” says that there are some who think that this practice is a scheme to benefit the wealthy. However, an increasing number of advocates for middle-class elderly New Yorkers strongly support it as an essential way to keep a “well” spouse from poverty, when health care costs are skyrocketing.

Currently, New York and Florida are the only states that permit this practice.

However, now the state Medicaid Redesign Team is looking at if they should stop the decades-old practice. Governor Andrew M. Cuomo appointed the group of health care leaders to cut $2.5 billion from Medicaid, and their recommendations are due by mid-March.

Eligibility for Medicaid is based on family income and wealth, but there can be exemptions and special circumstances. A married couple who are both 65 years old or older can have no more than about $38,000 in annual income, and assets of no more than about $120,000, if one spouse is to be covered by Medicaid for nursing home care or comparable home care. As a result, any income and assets above those thresholds must be used to help pay for this care, which averages more than $10,000 a month in the Empire State.

This spousal refusal option lets the “well” spouse—the one who is not in need of care— to collect more income and retain more of the couple’s assets under his or her name. This process is replete with loopholes and is also complicated by federal law designed to protect more assets to avoid “spousal impoverishment.”

With a mandate to trim $2.5 billion from Medicaid in New York, it’s not clear how much spousal refusal costs the state. In 2016, the price was estimated at $10 million. However, this didn’t consider the continuing annual costs of each refusal, or the increased costs of care as the spouse who entered a nursing home gets older.

Spousal refusal has an increasing number of supporters for maintaining the practice, who say that it helps middle class families deal with soaring health care costs, prevents couples from having to spend their savings and give away assets to qualify for Medicaid and makes it unnecessary to contemplate divorce only to protect assets.

There’s one additional benefit: a spouse could enter a nursing home more quickly because Medicaid payments will kick in immediately and would avoid the lengthy process of determining eligibility.

Reference: Newsday (February 23, 2020) “State considers end to ‘spousal refusal’ to pay for nursing home care”

Key Terms: Elder Law Attorney, Medicaid, Paying for a Nursing Home, Long-Term Care Planning, Medicaid Trust Planning, Medicaid Nursing Home Planning, Assisted Living, Nursing Home Care, Medicaid Planning Lawyer, Disability, Elder Care

SECURE Act

What Should I Know about the Secure Act of 2019 and IRAs?

New federal rules for IRAs will significantly add to the tax burden for some heirs by telescoping the permitted period for withdrawals. But this pain can be greatly reduced by converting regular IRAs to Roth IRAs before bequeathing them, explains CNBC’s recent article entitled “Here’s a way to beat the tax burden for IRA heirs.”

Before the new legislation, all heirs could enjoy their entire life expectancy to take withdrawals from inherited IRAs. As a result, they were able to stretch out these accounts, and the tax on withdrawals, over decades. That’s why they were given the nickname “stretch IRAs.”

But this changed in December of 2019 when Congress passed the Secure Act of 2019. The bill preserves the lifelong stretch period for surviving spouses, minor children, the chronically ill, and other individuals who aren’t more than 10 years younger than their benefactors (this group would include most siblings). However, for other heirs—including adult children—the new rules restrict the stretch period to a single decade. Beginning with the IRA bequests from benefactors who die in 2020, heirs must now take out all of the funds from these accounts within 10 years and pay ordinary income tax on each withdrawal.

With this accumulated wealth to heirs, adult children will also be saddled with a huge tax burden. This means more of a need for estate planning to address this. Without estate-planning expertise, these beneficiaries will likely withdraw 10% of the IRA’s assets every year for 10 years to lessen the tax impact.

A wise solution for some is to convert their regular IRA into a Roth IRA. Unlike regular IRAs, contributions to Roth IRAs are made solely with post-tax money. Though unlike regular IRAs, Roth IRAs carry no income tax on withdrawals, the Secure Act means they will now be required to drain the account within 10 years of inheritance.

Note that as you get near retirement, converting to a Roth has a few other advantages. Holders of regular IRAs must begin taking annual required minimum distributions (RMDS) at age 72 (before the new legislation in December, this age was 70½).

However, if you plan to keep working or are retiring with sufficient income from other resources, you may not decide to take withdrawals. Rather, you may want to allow these assets in your account grow intact rather than gradually weaning them for withdrawal. Converting to a Roth allows you to do this.

Depending on your situation, a Roth conversion might be a wise option if—not only to lessen your heirs’ tax burden but also to sustain the growth of your retirement nest egg.

Ask your estate planning attorney about a Roth IRA conversion and how it fits into your estate plan.

Reference: CNBC (Feb. 12, 2020) “Here’s a way to beat the tax burden for IRA heirs”

Key Terms: Elder Law Attorney, Inherited IRA, Estate Planning, Required Minimum Distribution (RMD)

Planning for Long Term Care

Planning for Long-Term Care Before It’s Too Late

Starting to plan for elder care should happen when you are in your 50s or 60s. By the time you are 70, it may be too late. With the national median annual cost of a private room in a nursing facility coming in at more than $100,000, not having a plan can become one of the most expensive mistakes of your financial life. The article “Four steps you can take to safeguard your retirement savings from this risk” from CNBC says that even if care is provided in your own home, the annual median national cost of in-home skilled nursing is $87.50 per visit.

There are fewer and fewer insurance companies that offer long-term care insurance policies, and even with a policy, there are many out-of-pocket costs that also have to be paid. People often fail to prepare for the indirect cost of caregiving, which primarily impacts women who are taking care of older, infirm male spouses and aging parents.

More than 34 million Americans provided unpaid care to older adults in 2015, with an economic value of $522 billion per year.

That’s not including the stress of caring for loved ones, watching them decline and needing increasingly more help from other sources.

The best time to start planning for the later years is around age 60. That’s when most people have experienced their parent’s aging and understand that planning and conversations with loved ones need to take place.

Living Transitions. Do you want to remain at home as long as is practicable, or would you rather move to a continuing care retirement community? If you are planning on aging in place in your home, what changes will need to be made to your home to ensure that you can live there safely? How will you protect yourself from loneliness, if you plan on staying at home?

Driving Transitions. Knowing when to turn in your car keys is a big issue for seniors. How will you get around, if and when you are no longer able to drive safely? What transportation alternatives are there in your community?

Financial Caretaking. Cognitive decline can start as early as age 53, leading people to make mistakes that cost them dearly. Forgetting to pay bills, paying some bills twice, or forgetting accounts, are signs that you may need some help with your financial affairs. Simplify things by having one checking, one savings account and three credit cards: one for public use, one for automatic bill-paying and a third for online purchases.

Healthcare Transitions. If you don’t already have an advance directive, you need to have one created, as part of your overall estate plan. This provides an opportunity for you to state how you want to receive care, if you are not able to communicate your wishes. Not having this document may mean that you are kept alive on a respirator, when your preference is to be allowed to die naturally. You’ll also need a Health Care Power of Attorney, a person you name to make medical decisions on your behalf when you cannot do so. This person does not have to be a spouse or an adult child—sometimes it’s best to have a trusted friend who you will be sure will follow your directions. Make sure this person is willing to serve, even when your documented wishes may be challenged.

Reference: CNBC (Jan. 31, 2020) “Four steps you can take to safeguard your retirement savings from this risk”

Key Terms: Elder Care, Nursing Facility, Long Term Care, Cognitive Decline, Retirement Savings, Advance Directive, Estate Plan, Continuing Care Community, Caregiving

Long Distance Caregivers

How Can Long-Distance Caregivers Help Loved Ones?

A recent article noted that long-distance caregivers have the same concerns and pressures as local caregivers, perhaps even more. They spend about twice as much on caregiving as people caring for a loved one nearby, because they’re more likely to need to hire help, take uncompensated time off work and pay for travel. A huge challenge for this group is just staying informed and assured that the person needing care is in good hands. As a result, long-distance caregivers must have good communication and a solid team on the ground.

AARP’s recent article entitled “Long-Distance Caregiving: 5 Key Steps to Providing Care From Afar” provides us with five steps to staying informed and effective as a long-distance caregiver and thoughts for implementing the measures.

  1. Be sure you have access to information. Having a means of receiving good information and possessing legal authority to make financial and health-care decisions is critical for all primary caregivers, but it’s even greater for ones caring from a distance. Arrange as much as you can during an in-person visit.
  • Start the discussion on finances and map out with your loved one how to pay for health care and everyday expenses.
  • Ask whether your parent or other senior is able to sign the forms or make the calls necessary to give doctors, hospitals and insurers permission to share information with you or another trusted family member. This should include banks and utilities.
  • Be sure the senior has designated a durable power of attorney for health care and financial decisions.
  • Know what to do in an emergency, as far as access to the home by a neighbor, if needed.
  1. Create your on-the-ground support team. Don’t try to do it all, especially if your loved one has more serious or complicated health issues. In addition to healthcare professionals, ask friends, family and community groups to join a network of caregiving helpmates. Remember to add your loved one as part of the team.
  • Assign roles and tasks, that the members of the team are willing and able to do.
  • Create a list with contact info for everyone and keep it up to date.
  1. Consider hiring a reputable caregiving professional. They’re often called a geriatric care manager, aging life care manager, or eldercare navigator or coordinator. These professionals are frequently licensed nurses or social workers who can also be valuable mediators or sounding boards, when family members disagree on care decisions.
  • Verify the person’s professional certifications, see how long the person has been in the field and request references.
  • Care managers can charge $50 to $200 an hour. Medicare doesn’t cover this service, nor do most health insurance plans. However, if you can handle it financially, an experienced manager may be able to save your family time, money and stress with even a short call.
  1. Find ways to communicate regularly with your local support group and loved one. You should leverage technology. With permission, place video monitors, wearable activity trackers, remote door locks to prevent wandering (if the care recipient has dementia) and even electronic pill dispensers that can tell you if someone has taken the prescribed medications.
  2. Leverage your visits. Nothing’s better than an in-person visit. When you can manage one, come with a list of things you need to know or discuss.
  • Interview possible home aides or house cleaners or meet with social workers or other professionals involved in your loved one’s care to discuss any concerns.
  • Look for signs of abuse, which means monitoring your senior’s checking account and see if there are any irregularities and look for red flags of physical or emotional mistreatment, like bruises, unexplained injuries, or a sudden change in personality. Note if your family member talks about a person you’ve never met who visits often and has been “very helpful.”

Although you may have several practical tasks to tick off your list, it’s important to spend quality time with your loved one. And seek the advice of a qualified elder law attorney, if you have any questions.

Reference: AARP (Oct. 30, 2019) “Long-Distance Caregiving: 5 Key Steps to Providing Care From Afar”

Key Terms: Elder Law Attorney, Disability, Elder Abuse, Financial Abuse, Elder Care, Undue Influence, Caregiving, Dementia, Alzheimer’s Disease, Geriatric Care Manager

Power of Attorney

Why Would I Need a Power of Attorney?

Recently Heard’s article entitled “6 Reasons to Choose a Power of Attorney” provides us with several reasons why you want to have one drafted.

  1. Choose Who Can Make the Decisions on Your Behalf. If you have a signed a power of attorney and later you become incapacitated and are unable to make decisions, the agent you named in your POA can step in on your behalf. Without a power of attorney, loved ones will need to go to court to request a conservatorship or guardianship, and that can be expensive.
  2. Guardianship Not Needed. If you fail to sign a comprehensive power of attorney before you become incapacitated, you and your family have few options.

Someone will have to petition the court to appoint a guardian or a conservator. The judge will decide who will manage your financial health affairs. The court will also monitor the situation. This can be expensive, and you’ll have no say regarding who will be chosen to serve.

  1. Lets You Discuss Your Wishes. An important decision is who your agent will be. When a parent or loved one decides to sign a power of attorney, it offers the chance to discuss the wishes and the expectation with the family and the person who’s named as an agent in a power of attorney.
  2. Comprehensive Power of Attorney is Preferred. When you age, your needs change. Your POA should reflect it.
  3. Your Intent is Clear. If you become incapacitated, relatives may need to go to court to determine your intent. However, a well-drafted power of attorney provides a healthcare directive, which can eliminate the need for the family members to have arguments or disagree over your wishes.
  4. Avoid Delays. With a comprehensive power of attorney, all the powers required to do effective asset protection planning are included. Note: if a power of attorney doesn’t include the specific power, it can reduce the ability of the agent and may lead to significant setbacks.

Want to write a power of attorney? Contact a qualified estate planning attorney.

Reference: Recently Heard (Jan. 30, 2020) “6 Reasons to Choose a Power of Attorney”

Key Terms: Elder Law Attorney, Estate Planning, Power of Attorney, Capacity, Healthcare Directive

Medicaid Planning Trust

What You Need to Know about a Medicaid Asset Protection Trust (MAPT)

Moving into a nursing home can be expensive, costing you $5,000 to $10,000 a month or more. This expense can quickly wipe out your life savings. Medicaid will pick up the bill for you, if your income and assets are low enough to qualify for Medicaid benefits. The problem is you typically have to be nearly destitute, before you can qualify for Medicaid.

If you put your assets into a Medicaid Asset Protection Trust, however, you might be able to qualify for Medicaid, even if your assets exceed the limit. Here is what you need to know about a Medicaid Asset Protection Trust (MAPT).

Medicaid Income and Asset Limits

Eligibility for Medicaid varies by state. In general, you must have little or no income and few countable assets. Each state also has non-economic requirements, such as age, disability and household size, depending on your circumstances.

Medicaid does not count all of your assets toward the asset limit. For example, if you or your spouse live in your primary house, Medicaid considers the home an exempt asset. The value of that property does not count toward your state’s asset limit. There are limits on the amount of equity that does not count. The limits vary from state to state.

Additional examples of assets that can be exempt, include one car, term life insurance, household furnishings, clothing, wedding and engagement rings and other personal items. Medicaid does not count prepaid funeral and burial plans or life insurance policies with little cash value toward the limit.

Medicaid does count these things toward the asset limit:

  • Cash
  • Bank accounts
  • Investments
  • Vacation homes
  • Retirement accounts not yet in payout status (only in some states)

These are the general guidelines. Your state’s treatment of assets might differ.

How a MAPT Works

When you put your assets into a Medicaid Asset Protection Trust (MAPT), Medicaid does not count those things toward the asset limit. You do not own those items – the trust does. Medicaid does not count an asset that does not belong to you. The trust can protect the assets for distribution one day to your beneficiaries.

Please note that a “Medicaid Asset Protection Trust” can also go by the name of “Medicaid Planning Trust,” “Home Protection Trust,” or “Medicaid Trust.” Make sure that the trust you select is Medicaid-compliant. Most revocable living trusts, family trusts, irrevocable funeral trusts, and qualifying income trusts (QITs, also called Miller trusts) are not Medicaid-compliant. They will not protect your assets, if you want to be eligible for Medicaid to pay for a nursing home.

Essential Aspects of MAPTs

MAPTs are sophisticated estate planning documents. Here are a few of the highlights of these documents:

  • You cannot create a MAPT and immediately apply for Medicaid. You will have to wait at least five years (2.5 years in California) before you apply for Medicaid, after setting up a MAPT. If you apply for Medicaid before the “look back” period expires, you could face harsh financial penalties.
  • You are the grantor of your trust. You state might use a different term, like the trust-maker or settlor. Your spouse cannot be the trustee of your MAPT, but your adult child or another relative can be.
  • The trust must be irrevocable. Once signed, you can never change or cancel the trust. You can never own those assets again. If you create a revocable trust, Medicaid will count all the assets in the trust toward the asset limit, because you still have control over the assets.
  • The trustee must follow the instructions of the trust. No funds of the trust can get used for your benefit.
  • A MAPT protects your assets from Medicaid estate recovery. Without a MAPT, after you die, the state could seek reimbursement from your estate for all the money they paid for your long-term care.
  • While a Miller trust will not protect your assets, it can protect some of your income, if your income exceeds the limit for Medicaid. Used with a MAPT, many people can qualify for Medicaid to help pay for the nursing home, even if their assets and income exceed the eligibility limits.
  • The rules for MAPTs vary from one state to the next.

The regulations are different in every state. You should talk to an elder law attorney in your area to see how your state varies from the general law of this article.

References:

American Council on Aging. “How Medicaid Planning Trusts Protect Assets and Homes from Estate Recovery.” (accessed December 19, 2019) https://www.medicaidplanningassistance.org/asset-protection-trusts/

American Council on Aging. “How to Spend Down Income and/or Assets to Become Medicaid Eligible.” (accessed December 19, 2019) https://www.medicaidplanningassistance.org/medicaid-spend-down/

Suggested Key Terms: Medicaid Asset Protection Trust, MAPT, protecting your assets to qualify for Medicaid

Prof. Jonathan Turley

Great Advice from Prof. Turley – Consider a Private Social Worker

-By Christopher Mays

If you have been following the impeachment proceedings recently you may recognize Professor Jonathan Turley. He testified before the House Judiciary Committee in both the impeachment for President Trump and President Clinton, giving his opinion on the legal technicalities involved in the process. He was also one of my professors in law school, so I occasionally peruse his blog. As it turns out, he has some very good advice when it comes to Elder Law and caring for family: consider hiring a private social worker for aging family members.

The case for a private social worker is made in an article on Professor Turley’s blog authored by Darren Smith (click here for a link to the article on Prof. Turley’s blog). Essentially the case is this. Hospitals, Nursing Facilities and Government Agencies all have their own social workers. While in each case the social worker’s job is to advocate for the patient – there is always the potential that a social worker’s ability to advocate for a patient can be influenced by the interests of their employer.

As an attorney who has helped clients with guardianship of older family members and served as a guardian for seniors – I cannot say enough good things about what social workers do. Much of my work has been with the Regional Older Adult Facilities Mental Health Support Team (RAFT) with Arlington County. RAFT social workers do a number of things to help improve the living situation for seniors, including:

  • Assessing the mental health, behavioral, and care needs of older adults.
  • Providing educational and therapeutic support to both families and patients.
  • Training staff at care facilities about the specialized needs of seniors with mental health issues
  • Medication monitoring and evaluation

Personally, I have had a number of cases where older adults have been: unable to find placements because of mental health or behavior issues; at risk from poorly managed behaviors (wandering, etc.); or faced with other significant problems. In every case where I have had social workers, like the ones from the RAFT team, assist clients – we have been able to quickly transition seniors from unstable and potentially dangerous situations to well managed, comfortable and compassionate living arrangements.

When faced with family members in difficult situations because of aging, probably the most common reaction is “What do I do?” Social workers excel at helping people answer that question and come up with a plan for moving forward.

 

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