You were appointed Executor…Now what?

Being the executor of an estate is not a task to take lightly. An executor is the person responsible for managing the administration of a deceased individual’s estate. Although the time and effort involved will vary with the size of the estate, even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries.

Last Will & Testament

The executor is either named in the will or if there is no will, appointed by the court. You do not have to accept the position of executor even if you are named in the will.

The average estate administration takes one year, though you won’t need to work full time on it. Following are some of the duties you may have to perform as executor:

  • Find documents. If there is a will, but you don’t already know where the will is or the will hasn’t already been brought to court, you may need to find it among the deceased’s belongings. If all you have is a copy of the will, you may need to get the original from the lawyer who drafted it. You will also need to get a copy of the death certificate.
  • Hire an attorney. You are not required to hire an attorney, but mistakes can cost you money. You may be personally liable if something goes wrong with the estate or the payment of taxes. An attorney can help you make sure all the proper steps are taken and deadlines met.
  • Apply for probate. If there is a will, the court will grant you letters testamentary. If there is no will, you will receive letters of administration. This will officially begin your work as the executor.
  • Notify interested parties. Notify the beneficiaries of the will, if there is a will, as well as any potential heirs (such as children, siblings, or parents who may or may not be named in a will). In addition, you will have to place an advertisement for potential creditors in a newspaper near where the deceased lived.
  • Manage the deceased’s property. You will need to prepare a list of the deceased’s assets and liabilities, and you may need to collect any property in the hands of other people. One of the executor’s jobs is to protect the property from loss, so you will need to assure the property is kept safe. You will also need to hire an appraiser to find out how much any property is worth. In addition, if the estate includes a business, you may have to make sure the business continues to run.
  • Pay valid claims by creditors. Once the creditors are determined, you will need to pay the deceased’s debts from the estate’s funds. The executor is not personally liable for deceased’s debts. The estate usually pays any reasonable funeral expenses first. Other debts include probate and administration fees and taxes as well as any valid claims filed by creditors.
  • File tax returns. You need to make sure the tax forms are filed within the time frame set under the law. Taxes will include estate taxes and income taxes.
  • Distribute the assets to the beneficiaries. Once the creditors’ claims are clear, the executor is responsible for making sure the beneficiaries get what they are entitled to under the will or under the law, if there is no will. You may be required to sell property in order to fulfill legacies in a will. In addition, you may have to set up any trusts required by the will.
  • Keep accurate records. It is very important to keep accurate records of everything you do. You will need to create a final accounting, which the beneficiaries must review before the distribution of the estate can be finalized. The accounting should include any distributions and expenses as well as any income earned by the estate since the deceased died.
  • File the final accounting with the court. Once the final accounting is approved by the beneficiaries and the court, the court will close the estate. File a final report with the court and close the estate.

All this can be a lot of work, but remember that the executor is entitled to compensation, subject to approval by the court. Keep in mind that the compensation is counted as income, so you will need to declare it on your income taxes.

Removing the burden for an executor and family>

We are proud of our reputation in helping those in need especially around a time of grief. We have provided relief and comfort for countless families while expediting the process and clarifying the ‘legalease’ for our clients. Whether it’s a probate or non-probate estate each client gets the personal attention they need to make the process less of a burden. Feel free to call us for more information or email me personally at braphan@raphanlaw.com.

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Be Aware of the Kiddie Tax Before Leaving an IRA to Children

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Grandparents may be tempted to leave an IRA to a grandchild because children have a low tax rate, but the “kiddie tax” could make doing this less beneficial.

An IRA can be a great gift for a grandchild. A young person who inherits an IRA has to take minimum distributions, but because the distributions are based on the beneficiary’s life expectancy, grandchildren’s distributions will be small and allow the IRA to continue to grow. In addition, children are taxed at a lower rate than adults—usually 10 percent.

However, the lower tax rate does not apply to all unearned income. Enacted to prevent parents from lowering their tax burden by shifting investment (unearned) income to children, the so-called “kiddie tax” allows some of a child’s investment income to be taxed at the parent’s rate. For 2017, the first $1,050 of unearned income is tax-free, and the next $1,050 is taxed at the child’s rate. Any additional income is taxed at the parent’s rate, which could be as high as 35 percent. The kiddie tax applies to individuals under age 18, individuals who are age 18 and have earned income that is less than or equal to half their support for the year, and individuals who are age 19 to 23 and full-time students.

If a grandparent leaves an IRA to a grandchild, the grandchild must begin taking required minimum distributions within a year after the grandparent dies. These distributions are unearned income that will be taxed at the parent’s rate if the child receives more than $2,100 of income (in 2017). In addition to IRAs, the kiddie tax applies to other investments that supply income, such as cash, stocks, bonds, mutual funds, and real estate.

If grandparents want to leave investments to their grandchildren, they are better off leaving investments that appreciate in value, but don’t supply income until the investment is sold. Grandparents can also leave grandchildren a Roth IRA because the distributions are tax-free.

For more information about leaving an IRA to grandchildren from Kiplinger, click here.

State Properly Valued Sale of Medicaid Applicant’s Life Estate…

life estates

An Ohio appeals court rules that the state correctly valued the sale of a Medicaid applicant’s life estate using the specific state Medicaid life estate law as opposed to the more general law on determining fair market value. Stutz v. Ohio Department of Job and Family Services (Ohio Ct. App., 3rd Dist., No. 15-17-02, Aug. 21, 2017).

Barbara Stutz owned a life estate in her property and her sons owned the remainder interest. She entered a nursing home and applied for Medicaid. The state approved the application but decided the life estate was an asset that must be valued. Ms. Stutz appraised the life estate at $2,000 and sold it to her sons for $1,800. The state determined that the correct life estate value was $24,941, and it imposed a penalty period on Ms. Stutz for an improper transfer of assets.

Ms. Stutz appealed, arguing that the state should have used the general definition of fair market value in state law, which defines fair market value as the going rate that property can be expected to sell for on the open market, to value her life estate. She presented evidence that local realtors and bankers valued her life estate at $2,000. Instead, the state used the state law that applies to Medicaid and life estates and ruled that $24,941 was the correct value. Ms. Stutz appealed to court, and the trial court affirmed the state’s decision.

The Ohio Court of Appeals, 3rd District, affirms, holding that the state properly valued the life estate. According to the court, “a specific statute prevails over a general statute,” so the state correctly used the life-estate-value statute rather than the general fair-market-value statute.

For the full text of this decision, go to: http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2017/2017-Ohio-7287.pdf

For more on Medicaid Planning go to: http://www.raphanlaw.com/medicaid-planning-

New York City’s Safest And Most Dangerous Hospitals: Rankings

From New York City Patch: https://patch.com/new-york/new-york-city/new-york-citys-safest-most-dangerous-hospitals-rankings By

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NEW YORK, NY — Going to certain hospitals in New York City may do more harm than good, according to new batch of hospital safety rankings released Wednesday. Of the city’s 41 hospitals graded by the Leapfrog Group, a nonprofit founded by employers and healthcare providers, 34 hospitals received a grade of “C” or below.

Yikes.

To paint an even uglier picture, zero of the city’s hospitals received an “A” grade; that’s down from 2 hospitals that received an “A” in the Leapfrog Group’s 2016 fall safety rankings. If you live by the “Cs get degrees” theory, the majority of the city’s hospitals would still get passing grades — but not by much. In total, seven hospitals got a grade of “B,” 23 got a grade of “C,” nine got a grade of “D” and two got a grade of “F.”

The hospitals that failed were SUNY Downstate Medical Center in Brooklyn and Flushing Hospital Medical Center in Queens, according to the Leapfrog rankings. (For more New York City news delivered straight to your inbox sign up for Patch’s free newsletters and breaking news alerts.)

Leapfrog looks at medical errors, accidents, injuries and infections when calculating its grades, according to the ranking methodology. The goal of the rankings is to determine a patient’s risk of further injury or infection is if they visit a certain hospital.

According to the organization, more than 1,000 Americans die each day from preventable hospital errors. Hospitals given a B rating by Leapfrog had a 9 percent higher risk of avoidable death than A hospitals. That number jumps to 35 percent in C hospitals.

Cross your fingers and look for your hospital’s grade below:

  1. NYU Langone Medical Center (Manhattan): B
  2. NYC Health + Hospitals – Bellevue (Manhattan): C
  3. Mount Sinai West (Manhattan): D
  4. Mount Sinai Beth Israel (Manhattan): C
  5. New York-Presbyterian Weill Cornell Medical Center (Manhattan): C
  6. Northwell Health System – Lenox Hill Hospital (Manhattan): C
  7. The Mount Sinai Hospital (Manhattan): C
  8. NYC Health + Hospitals – Metropolitan (Manhattan) : B
  9. Mount Sinai (Queens): C
  10. Mount Sinai St. Luke’s (Manhattan): D
  11. The Brooklyn Hospital Center (Brooklyn): C
  12. NYC Health + Hospitals – Woodhull (Brooklyn): B
  13. Wyckoff Heights Medical Center (Brookyln): C
  14. NYC Health + Hospitals – Harlem (Manhattan): B
  15. NYC Health + Hospitals – Elmhurst (Queens): D
  16. New York Methodist Hospital (Brooklyn): D
  17. NYC Health + Hospitals – Lincoln (Bronx): B
  18. New York-Presbyterian Hospital Columbia University Medical Center (Manhattan): C
  19. NYC Health + Hospitals – Kings County (Brooklyn): C
  20. Kingsbrook Jewish Medical Center (Brooklyn): C
  21. SUNY Downstate Medical Center (Brooklyn): F
  22. Maimonides Medical Center (Brooklyn): D
  23. Long Island Jewish Forest Hills Hospital (Queens): C
  24. Bronx Lebanon Hospital Center Concourse Campus (Bronx): C
  25. Brookdale Hospital Medical Center (Brooklyn): D
  26. New York-Presbyterian (Queens): C
  27. St. Barnabas Hospital (Bronx): D
  28. Flushing Hospital Medical Center (Queens): F
  29. New York-Presbyterian The Allen Hospital (Manhattan): C
  30. Mount Sinai (Brooklyn): C
  31. New York Community Hospital (Brooklyn): C
  32. Richmond University Medical Center (Staten Island): D
  33. Jamaica Hospital Medical Center (Queens): D
  34. NYC Health + Hospitals – Queens (Queens): B
  35. Montefiore Einstein Campus (Bronx): C
  36. NYC Health + Hospitals – Jacobi (Bronx): C
  37. NYC Health + Hospitals – North Central Bronx (Bronx): B
  38. Montefiore Moses Campus (Bronx): C
  39. NYC Health + Hospitals – Coney Island (Brooklyn): C
  40. Montefiore Wakefield Campus (Bronx): C
  41. Northwell Health System – Staten Island University Hospital (Staten Island): C

Photo by Spencer Platt/Getty Images News/Getty Images

New Protections for Nursing Home Residents

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New Obama-era rules designed to give nursing home residents more control of their care are gradually going into effect. The rules give residents more options regarding meals and visitation as well as make changes to discharge and grievance procedures.

The Centers for Medicare and Medicaid finalized the rules — the first comprehensive update to nursing home regulations since 1991 — in November 2016. The first group of new rules took effect in November; the rest will be phased in over the next two years.

Here are some of the new rules now in effect:

  • Visitors. The new rules allow residents to have visitors of the resident’s choosing and at the time the resident wants, meaning the facility cannot impose visiting hours. There are also rules about who must have immediate access to a resident, including a resident’s representative. For more information, click here.
  • Meals. Nursing homes must make meals and snacks available when residents want to eat, not just at designated meal times.
  • Roommates. Residents can choose their roommate as long as both parties agree.
  • Grievances. Each nursing home must designate a grievance official whose job it is to make sure grievances are properly resolved. In addition, residents must be free from the fear of discrimination for filing a grievance. The nursing home also has to put grievance decisions in writing. For more information, click here.
  • Transfer and Discharge. The new rules require more documentation from a resident’s physician before the nursing home can transfer or discharge a resident based on an inability to meet the resident’s needs. The nursing home also cannot discharge a patient for nonpayment if Medicaid is considering a payment claim. For more information, click here.

CMS also enacted a rule forbidding nursing homes from entering into binding arbitration agreements with residents or their representatives before a dispute arises.  However,a nursing home association sued to block the new rule and a U.S. district court has granted an injunction temporarily preventing CMS from implementing it.  The Trump Administration is reportedly planning to lift this ban on nursing home arbitration clauses.

In November 2017, rules regarding facility assessment, psychotropic drugs and medication review, and care plans, among others, will go into effect. The final set of regulations covering infection control and ethics programs will take effect in November 2019.

To read the rules, click here.

Free Services for Seniors or Their Caregivers

Most seniors these days are living on limited incomes from sources that may include Social Security, a small pension or maybe some other form of government assistance. With few resources at their disposal, finding services for free or discounted prices is vital.

There are likely many of these types of services available through your local Office for the Aging (the name of this government agency may be different in your local area, i.e. Division of Senior Services) or local charities such as Lions Club or Meals-on-Wheels, or on the Internet through sites like ElderCare.gov.

However, in my opinion, the most rewarding of these freebies for seniors and their caregivers – things like free hearing aids and free dentures – will be more difficult to come by. From my experiences as a caregiver, I have compiled a list of these types of services and provided a roadmap and examples for how to find them.

Free or Discounted Services for Seniors and Their Caregivers

  1. Benefits Counseling
    How many times have you, either as a senior or as a caregiver, wrestled with trying to figure out what type of help was available to you? There is free counseling available through your local Office for the Aging that can provide this type of assistance and point you in the right direction to receiving the help you need.

    You can get answers regarding health insurance, food stamps and other services through these counselors.

  2. Adult Day Care
    Adult day care centers can be run by a government entity, or through a local charity or house of worship. The purpose of these senior centers is to provide a safe place to socialize and have a hot meal in a protected setting. These adult day care centers are ideal for seniors who cannot remain alone, but are not in need of the care that a nursing home provides.

    If you go through your local Office for the Aging, they will probably be able to direct you to such a day care center, let you know if there is a charge for the facility and what the eligibility requirements are.

    As for the fees associated with these facilities, if the facility does in fact charge a fee they are normally quite nominal and are just there to help the center cover its own costs for meals and operating costs like utilities.

    As for the eligibility requirements, that will depend upon the capabilities of the staff at each individual facility. As an example, some adult day care centers will only accept those who are continent because they will not have the supplies to change adult diapers. Other facilities may require a certain amount of mobility for those attending (i.e. they are able to get out of a wheelchair on their own or with minor assistance). It is really ‘hit or miss’ because each facility will have their own requirements.

    When initially contacting the Office for the Aging or the local charity, give them as much information upfront regarding both the fees (if you are only looking for a free facility) and the physical condition of the applicant. This way they can act as a filter to point you in the right direction.

  3. Dentists That Accept Medicaid
    Due to the problems of billing and getting paid by the government, there aren’t many dentists that accept Medicaid, but a few do. This means that a senior with no dental insurance may still be able to get the dental care needed…you just might have to travel to get it.

    To find a dentist in your state that accepts Medicaid, contact your state Department of Health, but keep in mind that you may have to travel out of your way to get these services. For example, in my home state of New York, the state Department of Health website lists about 40 dentists that accept Medicaid. That’s not a great number for a state with a population of 19,500,000. On Long Island, where I live, there are only two.

  4. Free Dentures
    As incredible as it may seem, it is possible for low-income seniors to receive a free set of dentures. In addition to calling your Office for the Aging to see if they know of a source, here are two additional places to look into:

    Your State Dental Association: here you will be able to access free or low-cost dental programs. As an example, one of my customers contacted the Ohio Dental Association and was then directed to Dental Options (in Ohio). She discovered her mother was eligible and will soon be getting the help she needs. While these services will vary based on your location, the place to start is with your state dental association.

    Dental Colleges: while not free, if there is a local dental college in your area you could get a substantial discount on dental care.

  5. Elderly Pharmaceutical Assistance Program (EPIC)
    EPIC is the name of the State Pharmaceutical Assistance Program in New York. New York is one of the 23 states that have such a program (the other 27 canceled their programs after the Federal government instituted Medicare Part D). If you live in Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Massachusetts, Maryland, Maine, Missouri, Montana, North Carolina, New Jersey, Nevada, New York, Pennsylvania, Rhode Island, Texas, the U.S. Virgin Islands, Virginia, Vermont, Washington State or Wisconsin, you have access to another means of assistance to obtain your prescription medications.

    Income requirements vary from state to state, so you will have to check with your state administrators to determine your level of eligibility, but this can be a great way for seniors to save on their prescription drug costs.

  6. Low Cost Prescription Drugs
    Despite the advent of Medicare Part D, and certain state run assistance programs such as EPIC (outlined above), there are still many seniors that cannot afford their medications.

    This is why most manufacturers of prescription drugs provide assistance for those who cannot afford their medications. A comprehensive list of these programs is provide by the Partnership for Prescription Assistance as well as the steps to follow to apply for assistance.

    Another cost saving strategy is to make the switch to generic drugs. According to the Food and Drug Administration, “Generic drugs are important options that allow greater access to health care for all Americans. They are copies of brand-name drugs and are the same as those brand name drugs in dosage form, safety, strength, route of administration, quality, performance characteristics and intended use.” Generic drugs cost about 50 to 80 percent less than their brand name equivalents, so it makes all the sense in the world to speak with your doctor about making the switch.

  7. Family Caregiver Support Programs
    These programs are often offered through the government, or volunteer organizations. Either way, as a caregiver, you can be provided with respite care by volunteers, as well as counseling and Support Groups to ensure your physical and emotional wellbeing. These services are designed to supplement, not replace, the efforts of the family in caring for a loved one.
  8. Free Cell Phones or Discounted Phone Service
    LifeLine is a federal government program for qualifying low-income consumers designed “to ensure that all Americans have the opportunities and security that phone service brings, including being able to connect to jobs, family and emergency services.”

    LifeLine assistance provides one free or discounted phone (either landline or wireless cell phone) per household. To qualify, seniors will likely have to be on some form of government assistance, such as Medicaid, food stamps, Supplemental Social Security, Temporary Assistance for Needy Families, or the Low Income Home Energy Assistance Program. Visit LifelineSupport.org to see if you qualify and to find participating companies in your state.

    I was able to get my mother a free cell phone within five days of her being approved for Medicaid, after providing a picture of my mother’s Medicaid award letter (yes, I know it is shocking for the government to move that quickly). The only drawback to the program is the type of phone that you are sent. My mother can use it but it has smaller buttons that can make it confusing. I would prefer for her to have a larger handset with larger buttons, but this is working for the moment.

  9. Free Phone for Hearing Impaired
    A new service that is (at least temporarily) being funded by the FCC, called CaptionCall, provides free phones to those with medically recognized hearing loss.

    The way that this phone works is simple. A screen on the phone instantly takes the words being spoken and puts them onto a screen on the phone so that hearing impaired individuals can read what is being said. You can learn more at CaptionCall.com/Caregiver (and click on Promotions) for more information.

  10. Supplemental Nutritional Assistance Program (SNAP)
    This used to be called Food Stamps, but is now known as the Supplemental Nutritional Assistance Program (SNAP). You can apply through your state Office for the Aging, or Elder Affairs Department.

    Each state has slightly different requirements based upon income, but what I have found is that most states have a website (www.mybenefits.ny.gov in my home state of New York) where you can set up an online account and, based upon your age, zip code, income and residence status, you are then directed to all of the benefits that you are eligible for.

    Once you are approved, the maximum monthly benefit depends upon the size of your family, from $200 all the way up to $1,500.

  11. Other Free Food Services
    In addition to programs such as SNAP, there are many nutrition programs, offered either by local charities or local governments that can provide seniors with a nutritious meal (typically lunch) and the opportunity to socialize.

    Check with your local Office for the Aging to see what programs are available in your area. In my county, there are 33 such nutrition sites that seniors can attend and, in some cases, transportation is provided.

    There are also websites that have listings of local food banks where qualifying individuals can receive free food. The best food bank search engine is at Feedingamerica.org. Simply plug in your state and a listing of locations and the types of services offered at each food bank will pop up.

  12. Free Hearing Aids
    Buying a new hearing aid can run into the thousands of dollars, so it’s no wonder that seniors are hard pressed to pay for these devices. But I have found that there are a few ways to obtain free hearing aids. Some will be new, and others may be used, but they will all be free.

    First, try your local Lion’s Club. Most chapters either operate or know of a local hearing aid bank that can match needy seniors with recycled hearing aids.

    Another approach is to seek out clinical trials of new hearing aids. Contact hearing aid manufacturers and see if you can volunteer for a trial. When the trial is over, you typically get to keep the hearing aid. I recently saw a commercial from one hearing aid manufacturer that was advertising for people to participate in trials, so they are open to this idea.

    You will have to medically qualify for the trial and you may have to contact several manufacturers until you find one that works for you. You may also get put on a waiting list. Regardless, this can be a powerful way for very low income seniors to receive a free hearing aid.

  13. Free Legal Help
    When my mother had her heart attack and I started the Medicaid application process, I quickly realized that there would not be any money to pay our mounting bills. So I called my local Office for the Aging and they put me in touch with a local law school that operated a Senior Law Center for low income seniors like Mom.

    They wrote a letter to the creditors on my behalf asking for the debts to be forgiven. With this letter I attached a letter from the nursing home detailing Mom’s prognosis. That was 14 months ago, and I haven’t heard from the creditors since, so I guess that ‘no news is good news.’ I did receive one confirmation letter, from Wal-Mart, that the debts were forgiven. The others have not contacted me yet, so I am hopeful that they’ve written the debts off as bad debt.

    These types of law centers won’t represent you in a large scale, but they can be invaluable in drafting a simple will, certifying a POA or health care proxy, or drafting a letter to creditors.

    If your Office for the Aging is unaware of a local resource for such help, another place to look would be the Lion’s Club. Many of the members of the Lion’s are attorneys and local business leaders who may be able to help you find a pro bono attorney to handle something like this.

  14. Free Medical Alert System
    We have all seen the television commercial with the elderly woman in the bathroom saying, “Help, I’ve fallen and I can’t get up!” That’s what a medic alert system is for. It is a waterproof pendant that is worn around the neck or wrist, that works in conjunction with a wireless phone attachment. In an emergency, the wearer presses the button to be connected with the monitoring service and speaks into the pendant.

    The actual system is totally free, even the shipping. The monitoring service does have to be paid for, but that is normally around $30 a month.

    One thing I would advise you to consider when choosing a medic alert company. Make sure that the company you choose does NOT outsource its central station monitoring service. When your loved one hits that button, you want a trained, competent professional who can calmly contact emergency services and stay on the line with your parent until help arrives.

    There are many medical alert products out there, such as, LifeStation and Rescue Alert, that offer this type of service.\

  15. Free Walkers or Rollators
    A walker will run you around $40 (rollators are a little more expensive). That can be a lot of money for a cash-strapped senior. If you are looking for a discounted or free walker, try thrift stores such as Goodwill, which operates stores throughout the country and has very reasonable prices. Hospitals and nursing homes may periodically dispose of reliable, used equipment that may be ideal for you.
  16. Home Energy Assistance Program (HEAP)
    Through your local or state Office for the Aging, you can apply for assistance either in the form of weather upgrades to your residence – such as added insulation in the attic to improve the energy efficiency of your home (this is known as the Weatherization Assistance Program) – as well as direct cash assistance based upon your income level.

    One not widely known fact about HEAP is that it is available to both homeowners and renters, making it more widely accessible for low-income seniors.

  17. Ombudsman Services
    For caregivers of nursing home patients, the state ombudsman’s office is there to address issues with the care of their loved ones. You can think of the ombudsman as similar to a union rep. They will investigate complaints on your behalf to insure that nursing home residents are being treated fairly.

    I previously wrote about my own experience with nursing home neglect against my mother and how I brought in the state ombudsman to investigate the issue.

    If you feel there is an issue of neglect or abuse of a nursing home resident, getting the contact information is easy. This information must be prominently displayed in the lobby of all nursing homes, along with the website and phone number to call for help.

  18. Residential Repair Services
    Need some minor work done around the house, but can’t afford the labor? Many Offices of the Aging run a residential repair service where seniors can have minor work done to their home or rental at no labor cost.

    NOTE: You will have to pay for supplies, but the labor is free from the volunteers.

  19. Silver Alert Program
    Caregivers of seniors with dementia are often concerned about a loved one wandering or getting lost, especially if they are driving with dementia. There are many ways to combat this. One way is through a Silver Alert program, which is a public notification system in the United States to broadcast information about missing persons – especially seniors with Alzheimer’s Disease, dementia, or other mental disabilities – in order to aid in their return.

    Silver Alert and similar programs vary greatly by state. The way the Silver Alert program works in my local area is as follows:

    The caregiver will preemptively enroll their loved one by contacting the local police department and filling out a form identifying the senior and giving a physical description, as well as any medical information you wish to disclose.

    Your parent will then be issued a Silver Alert bracelet that will have a unique ID number and instructions for anyone who locates them to call a non-emergency police number. This way they can be safely returned home without compromising any personal information on the part of the senior or caregiver.

Regards,

ElderLawNews

Medicaid Benefits – House Transfer: Deed Does Not Conflict

Reservation of Power of Appointment in Deed Does Not Conflict With Conveyance of Property to Children

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A Massachusetts appeals court rules that as part of Medicaid planning, a woman could reserve a power of appointment in a deed conveying property to her children while reserving a life estate for herself. Skye v. Hession (Mass. App. Ct., No. 16-P-282, Apr. 28, 2017).

Margaret Hession sought legal assistance to protect her house in the event she might need Medicaid benefits. As part of the Medicaid planning, she executed a deed transferring her house to her children. The deed reserved a life estate for her and granted her a special power of appointment that allowed her to appoint the property to any person except herself, her creditors, her estate, or her estate’s creditors. Ms. Hession decided her daughter Deaven Skye should inherit less than her other children. She wrote a will that exercised her power of appointment and reduced Ms. Skye’s interest in the property from one-third to 5 percent.

After Ms. Hession died, Ms. Skye objected to the will and argued that the power of appointment was void. The trial court dismissed Ms. Skye’s objection and admitted the will to probate. Ms. Skye appealed, arguing that the provisions in the deed granting the remainder interests and reserving a power of appointment are irreconcilably repugnant to each other.

The Massachusetts Court of Appeals, rules that the reservation of the power of appointment is consistent with the other provisions of the deed. According to the court, “because of the reservation of the life estate, the deed conveyed not present possessory estates but rather remainder interests; and, because of the reservation of the power, the remainder interests were defined, in part, by this limitation.” The court specifically does not express a “view on the effect of the reserved power of appointment on [Ms. Hession’s] strategy of avoiding MassHealth look-back period regulations.”

READ THE TOP 8 MISTAKES IN MEDICAID PLANNING HERE>

A Medicaid Applicant’s Purchase of Life Insurance Policy Is Transfer for Less Than Market Value

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An Illinois appeals court rules that a Medicaid applicant’s purchase of a life insurance policy was a transfer for less than fair market value because the applicant did not receive any benefit from the policy. Moore v. State of Illinois (Ill. App. Ct., 4th Dist., No. 4-16-0414, April 11, 2017).

Nursing home resident Elda Buckley applied for Medicaid. On the same day, she purchased a whole life insurance policy for $15,000 that named Christine Moore as the beneficiary. The state approved Ms. Buckley’s Medicaid application, but it determined that the purchase of the life insurance policy was a transfer for less than fair market value and imposed a penalty period.

Ms. Buckley appealed, arguing that she purchased the life insurance policy for fair market value, so the transfer should not be subject to a penalty period. The state and the trial court affirmed the penalty period. Ms. Buckley appealed.

The Illinois Court of Appeal, 4th District, affirms, holding that the purchase of the life insurance policy was a transfer for less than fair market value because Ms. Buckley did not receive the benefit of the policy. According to the court, the “apparent purpose of [Ms.] Buckley’s purchase of the insurance policy, of which she would receive none of the proceeds, was to shelter assets from Medicaid while ensuring [Ms.] Moore received the benefits of her assets.”

For the full text of this decision, go to: http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/4thDistrict/4160414.pdf

 

READ THE TOP 8 MEDICAID PLANNING MISTAKES HERE>

A Brothers’ Dispute Over Mother’s Nursing Home Placement Is Not Domestic Violence

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A New Jersey appeals court rules that an ugly dispute between two brothers over their mother’s placement in a nursing home did not amount to domestic violence. R.G. v. R.G.(N.J. Super. Ct., App. Div., No. A-0945-15T3, March 14, 2017).

R.G was the attorney-in-fact and primary caregiver for his parents. After R.G.’s mother fell ill, R.G. wanted to place his mother in a nursing home. R.G’s brother objected to this plan, but R.G. went ahead and had his mother admitted to a nursing home without his brother’s consent. R.G.’s brother sent angry and threatening texts and emails to R.G. as well as emails expressing his desire to find a way to care for their parents in their home. Eventually the men got into a physical altercation in which R.G.’s brother shoved R.G.

R.G. filed for a restraining order against his brother under the Prevention of Domestic Violence Act. The trial judge ruled that R.G. was harassed and assaulted and issued the restraining order. R.G.’s brother appealed, arguing that R.G. did not meet the definition of a victim of domestic violence.

The New Jersey Superior Court, Appellate Division, reverses, holding that R.G.’s brother’s actions did not amount to domestic violence. The court finds that there was insufficient evidence that R.G.’s brother purposely acted to harass R.G., ruling that “a mere expression of anger between persons in a requisite relationship is not an act of harassment.”

For the full text of this decision, go to: http://www.judiciary.state.nj.us/opinions/a0945-15.pdf

 

Elder Abuse is a National Epidemic

Via Huffington Post…

When Helping Hurts

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Elder abuse is a national epidemic. Each year in the United States, an estimated 10 percent of older Americans are injured physically, debilitated emotionally, exploited financially and/or neglected — often by an adult child, spouse, other relative or caregiver. Elder abuse victims have a three-fold risk of death compared to their non-abused counterparts. Frequently, an elder is isolated, their mistreatment hidden.

In 2006, newspapers around the country headlined the story that Brooke Astor, the legendary New York City philanthropist and socialite, was financially exploited and neglected by her son and attorney. The case attracted national attention as her grandson, with the help of others, sought elder justice – first, by petitioning for guardianship to help his grandmother and those who were (also) helping her, and second, to help bring some of her perpetrators (his father included) to justice. The Elder Abuse Unit of the New York County’s District Attorney’s Office indicted and convicted Brooke Astor’s son and attorney. Elder justice was realized.

That is rare. Most of the millions of elder abuse victims, their suffering shrouded in silence, do not receive justice. Only one in 24 elder abuse cases are reported to authorities. What is not rare is that, despite an almost total lack of support or resources, family, friends and neighbors step up to help. Yet helping hurts, as confirmed by new findings of our research.

 

Staggering Number Know About Elder Mistreatment, Assist Victims, and Feel Distress

Along with colleagues at Cornell University, University of Toronto and Purdue University, we utilized Cornell University’s Survey Research Institute’s omnibus survey to learn about these concerned persons who step up for elder abuse victims — a population that had never been assessed. The survey results were recently released in The Gerontologist. They show that when findings are extended to the general population (U.S. Census Bureau, 2016), approximately 73 million adult Americans have had personal knowledge of a victim of elder mistreatment. Further, approximately 44 million adult Americans have become involved in helping an elder abuse victim. And for over 32 million adult Americans, just knowing about an elder abuse situation is generally highly stressful. Actually providing help to the victim tends to intensify this personal distress.

We need more research to understand what specific aspects cause this distress. We do know from conversations with concerned persons that the path to assisting elder abuse victims is often fraught with challenges. Concerned persons may witness the decline in the victim’s health and seek to obtain medical care, or provide what care they can themselves. They might feverishly focus efforts on trying to stop a financial exploiter from completely emptying bank accounts. They may try to lessen the victim’s despair. Often, they are often the only ones standing between the victim and the abuser, preventing the victim from slipping into total isolation.

Yet they are usually wholly unprepared for how this intervention might take a toll on they themselves. Relationships with friends they confide in and family may become strained, sometimes to the breaking point. They may suffer financial consequences. And seeing or confronting an abuser can be dangerous, so they personally risk becoming the target of abuse. Intervening can take real courage, and even more to remain involved. And it requires time, as elder abuse cases tend not to resolve quickly. It is not surprising that concerned persons can experience anguish, frustration and trauma. Yet like the victims they help, they are largely invisible: their deeds often not recognized, their needs unacknowledged.

 

Communities Can Help

What can communities do? A new program to be launched this spring in New York City is a beginning. The New York City Elder Abuse Center is launching a pilot helpline for concerned persons assisting elder mistreatment victims residing in New York City. Funded in part by the Fan Fox & Leslie R. Samuels Foundation, it will provide information, referrals and support. This is an important first step, but the need is great. Programs must be developed for concerned persons — and elder abuse victims — in every community. This will require support from foundations, private philanthropists, businesses and government. Brooke Astor fervently believed in a collectively expressed philanthropy, a

Elder abuse is a national epidemic. Each year in the United States, an estimated 10 percent of older Americans are injured physically, debilitated emotionally, exploited financially and/or neglected — often by an adult child, spouse, other relative or caregiver. Elder abuse victims have a three-fold risk of death compared to their non-abused counterparts. Frequently, an elder is isolated, their mistreatment hidden.

In 2006, newspapers around the country headlined the story that Brooke Astor, the legendary New York City philanthropist and socialite, was financially exploited and neglected by her son and attorney. The case attracted national attention as her grandson, with the help of others, sought elder justice – first, by petitioning for guardianship to help his grandmother and those who were (also) helping her, and second, to help bring some of her perpetrators (his father included) to justice. The Elder Abuse Unit of the New York County’s District Attorney’s Office indicted and convicted Brooke Astor’s son and attorney. Elder justice was realized.

That is rare. Most of the millions of elder abuse victims, their suffering shrouded in silence, do not receive justice. Only one in 24 elder abuse cases are reported to authorities. What is not rare is that, despite an almost total lack of support or resources, family, friends and neighbors step up to help. Yet helping hurts, as confirmed by new findings of our research.