Elder Care Law

Protect Your Estate

Nursing Home Costs: The California Department of Health Services determined that the average private cost for nursing home for the 2010 taxable year was $6,331.00 per month. Those homes that do not accept Medi-Cal patients, or those that are locked facilities, the cost exceeds $6,000 a month. This figure fails to take into account any costs for medicine or for other assistance beyond nursing home care.

Medicare Payment Are Limited: Medicare only pays all the cost for the first 20 days. The patient must contribute $137.50 (in 2010 - will vary from year to year) for the next 80 days and thereafter, there are no Medicare benefits at all.

Nursing Home Insurance: Most nursing home insurance policies are quite expensive and contain numerous provisions which may provide a number of different loopholes for the insurer not to pay. Moreover, most people who need the insurance are already in a nursing home or seeking admission to one, and are therefore, uninsurable.

Medi-Cal Will Pay For Nursing Home Care: Unlike Medicare, Medi-Cal will generally pay indefinitely for nursing home care. However, in order to qualify for Medi-Cal, an individual must spend all of his or her assets (other than those that are exempt). To qualify for Medi-Cal nursing home benefits, an individual cannot have more than $2,000 in non-exempt assets ($3,000 for couples). There are a number of assets which are exempt, including your home, provided that certain rules are complied with. In addition, a community spouse may keep at least $2,739 in monthly income and in addition to the exempt assets, $109,560 in other community assets for 2010. We have assisted many clients with Medi-Cal planning and we can assist you.

Save Your Home

When Your Home Is Exempt: Medi-Cal eligibility requires that an applicant (and his/her spouse) have a limited amount of assets. Your home is exempt from consideration as a resource when you or your spouse is on Medi-Cal under any of the following circumstances:

• If during any absence, including nursing home stays, the beneficiary intends to return home, and states so in writing. If the beneficiary is mentally incapacitated, a family member or someone acting on her or his behalf may so state this intent.
• If the beneficiary’s spouse, child under age 21, or “dependent relative” continues to reside in the home.
• The residence is inhabited by the recipient’s sibling or son or daughter who has resided there continuously for at least one year prior to the date the recipient entered the nursing home.
• There are legal obstacles preventing the sale and the applicant/beneficiary provides evidence of attempts to overcome such obstacles.
• The home is a multiple dwelling unit, one of which is the principal residence of the beneficiary.

Exempt During Life, but Estate Claim After Death

Note that while a home may be exempt for Medi-Cal eligibility purposes, it is not exempt from estate recovery. Any assets left in a Medi-Cal beneficiary’s name at the time of death will be subject to an estate claim.  You should contact an attorney to assist you in avoiding this claim.

Elder Abuse:  The Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) (Welf & I C §§15600-15657.3) provides enhanced remedies for existing causes of action involving the abuse of elders or dependent adults. These include postmortem recovery for pain and suffering, attorney fees and costs, and conservator's costs. EADACPA also provides for concurrent probate and civil jurisdiction in certain situations sets forth procedures for seeking protective orders for elders or dependent adults in immediate danger of abuse

"Elder abuse," for purposes of EADACPA's enhanced remedies, includes physical abuse (Welf & I C §15610.63), neglect (Welf & I C §15610.57), isolation ( Welf & I C §15610.43), abduction (Welf & I C §15610.06), and financial abuse (Welf & I C §15610.30). This chapter will focus on financial abuse because it is the form of abuse most likely to be alleged in probate and trust litigation. Note, however, that isolation very often may occur in situations in which undue influence, duress, or manipulation of an elder may be occurring, and would give rise to enhanced remedies for the resulting financial abuse.

Nursing Home Abuse: : The Oakland-based California HealthCare Foundation has launched a new service for consumers: the California Nursing Home Search. The service was announced in October when the Foundation released a study showing that 44% of the 1,212 California facilities surveyed do not meet minimum state requirements for staffing levels. To assure that your loved ones get the right care research the facility first and make sure that someone visits your loved one at least 2-3 times per week.

Tips on Having "The Talk" With Aging Parents

If you're a baby boomer, you may already have had "the talk" with your growing children. But have you had "the talk" with your aging parents as well?

That talk involves a frank discussion with parents about financial arrangements for the end of life. The discussion should include where the parents want to live, how they want to be cared for, how they want their money managed, and what kinds of burial or funeral arrangements they would prefer.

The start of a new year can be a good time to start thinking about parents' financial affairs, according to an in-depth article in the St. Louis Post-Dispatch on having "the talk."

The hard part about talking with aging parents, according to the article, is that they're used to being in charge, instead of getting advice from their children.

"It's one of the hardest things that we as adult children have to do," says Sandra Timmermann, a gerontologist and director of the MetLife Mature Market Institute. "We have to be brave and take a deep breath and plunge into the cold water."

"The article outlines some of the topics that should be covered, including paying for long-term care and setting up powers of attorney, and offers strategies for starting a productive discussion. Some strategies:

Use your own planning, or a friend's or relative's illness or death, as an opportunity to start a discussion.

Be direct and honest.

If your parents are unwilling to disclose a full list of their assets, perhaps they would be willing to write down account numbers without balances or make a list and tell you where the list is kept.

Meet with a lawyer to review the parents' wills, health care directives and powers of attorney for property and health care.

Don't expect to work out an entire plan for the end of life in one sitting.