Here is a link to an article in the Jacksonville Business Journal indicating that the feds will probably require establishment of a medical loss ratio as part of its granting of the waiver for the Medicaid reform legislation.
This is apparently an intent to make sure that at least 85% of the money given to the selected care management companies is used for the benefit of the recipients of the services. As with many things, the devil may be in the details as to how various items are classified as a medical expense or as an administrative expense.
If I am asked to identify the single most important estate planning document, I will respond: durable power of attorney.
This is a document whereby another person (and alternates or successors) is given the power to act for the grantor with respect to many legal functions and the power is "durable" through a future mental incapacity ( but note that the power is not durable after death).
In the absence of a durable power of attorney, if the potential client becomes mentally incapacitated, one of his loved ones or other qualified interested person, will have to petition the Court to be appointed as Guardian and, as such, would then have the power to act for the potential client with regard to various legal functions.
The guardianship procedure is started with a Petition to Determine Incapacity which is filed simultaneously with the Petition to Appoint Guardian, the latter of which is a multipage application which requires the assembly and submission of substantial background information proving that the character in qualification of the Guardian. Before the Guardian is appointed, the potential Guardian must also prove completion of required education which includes watching and listening to DVDs instructing on the myriad of tasks that the Guardian will be expected to perform.
Upon the filing of the petition to determine incapacity, the court will appoint a committee of three persons, two medically qualified persons and a lay member of the committee, who will each interview the alleged incapacitated person (AIP) and file their report as to capacity within a two-week period. The Court will also appoint an Elisor (who is an attorney) to represent the AIP. The attorney will visit the AIP and read the Petition to Determine Incapacity to the AIP and otherwise consult with the AIP about the potential guardianship and will them file his/her report.
The Court will then review all of the reports and, if necessary, conduct a hearing to determine incapacity. If it is clear that the AIP is incapacitated, the appointment of guardian proceeding will then take place.
As you can see there is a considerable amount of work involved with a guardianship petition and, of course, the incurring of associated expense, including the fees of the committee, the Elisor, and the attorney for the petitioner. There is also a considerable amount of work for the petitioner.
In many cases all of this can be avoided by having a durable power of attorney in place prior to incapacity. Please keep in mind that foregoing information is intended to be a very short answer to a very complicated issue and that this answer omits discussing many of the other considerations involved in this process.
Michael Fowler
As mentioned in a prior blog entry, even if the patient does not plan for Medicaid, eventually the patient runs out of money, is destitute, and qualifies for Medicaid. The difference is that our clients who plan still have choices when they qualify for Medicaid whereas the patients who do not plan have no choice and are stuck with whatever Medicaid will pay for.
Why is this important? It is important because, as Medicaid and related public benefits become a larger and larger percentage of the budget, the law will shift in such a way as to reduce the quality of care, as well as making it more difficult to qualify for Medicaid.
Just as one example of this phenomenon, part of the sweeping Medicaid legislation enacted by the last session of the Florida legislature this summer included a 6.5% reduction in the Medicaid reimbursement rate to nursing homes. Nursing homes argued that they had difficulty making a profit before the reduction and that as a quid pro quo for the reduction, they needed to be given a reduction in required staffing levels from 2.9 hours per day per patient to 2.3 hours per day per patient, which they were.
As this trend continues, available services through Medicaid and, consequently, the quality of care experienced by Medicaid patients will continue to deteriorate. Our clients, who have planned, have protected assets which can be used to pay for things that Medicaid will not pay: for example, an additional caregiver to provide care or companionship to the patient, or to take the patient shopping, or to take the patient to get their hair done (and actually to have the money to be able to pay to get their hair done – the current personal needs allowance of $35 per month allowed by Medicaid will hardly permit that!).
Please note that we also help our clients who are veterans, or surviving spouses of veterans, qualifying for " improved wartime pension with aid and attendance" which can provide an additional monthly check of up to $1949 to help defray the cost of care.
Please call for a free copy of our Long-Term Care Planning Guide and our DVD explaining the Affordable Care Act, estate planning, and long-term care planning including Medicaid and VA benefits. 1-772-878-7271
This is an extremely dangerous misconception because it stops many potential clients from ever seeking the assistance of an elder law attorney.
The truth of the matter is that skilled elder law attorneys legally and ethically help nursing home residents and potential residents protect significant assets every day. For married clients, for example, we can often protect 100% of their assets, regardless of how the assets are titled and without resorting to divorce. In fact, divorce might be one of the worst strategies to employ.
For an unmarried client, many times we can protect in excess of $100,000 and up to 70% of any excess.
I think part of the reason for the widely held misconception that one must wait till they are destitute is that there are very few attorneys who devote their practice to Medicaid asset protection. This in turn may be because it takes a tremendous amount of study and training to do this type of planning which is widely considered to be one of the most complex areas in the law.
In fact, there are only three board certified elder law attorneys with principal offices in the four county treasure coast area. I am one of those as well as being one of only nine attorneys in the state who are dually board certified in Wills Trusts and Estates and in Elder Law. I also have in excess of 30 years of experience of compassionate care for my clients.
Michael Fowler
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