The most important estate planning documents that everyone over 18 needs (hint: not a will.)

I cannot tell you how many times I have had clients in my office who were very concerned because they “need a will drawn up.” There is nothing wrong with this. We help clients with wills, and trusts, and all kinds of arrangements to make sure their stuff goes where they want it to after they are on their way to the Great Beyond. The thing is, the clients who are focusing on getting a will are often missing the more important documents for the Here and Now.

In my opinion, which after 30 years of working with clients is admittedly not always so humble (because I like to think I usually know what I am doing at this point) wills and other post-death planning are secondary. The most important documents you need to put in place are those that will help make sure things are handled correctly during your life. Because while you are alive, it is still very important to YOU that someone is making health care decisions that reflect your wishes if you cannot make them yourself, and that some one is managing your finances appropriately when you cannot.

The most important estate planning documents are (drum roll please)

  1. A power of attorney for health care: This is a written document where you (the “principal”)  choose people (known as your “agents”) who can make health care decisions in the event you cannot. Typically, you will name one individual who will act as your primary agent, and then another one or two individuals who will act in succession if your first pick cannot.
  2. A durable power of attorney for finances and legal matters: This is a written document where you – the principal – choose one or more agents to handle your financial and legal matters. Again, you will typically select one person as the primary agent, then name one or more people to act in succession.

Wait, my spouse can’t make decisions for me? Most people are shocked when I tell them that in Wisconsin, even a spouse cannot make legal decisions on their behalf unless that spouse has been appointed as their agent. There are limited exceptions, such as limited health care decisions or the ability to act with respect to a joint bank account. But as a whole, nobody, not even a spouse or parent, can handle another adult’s health care or finances unless they have been appointed as agent in a legal document.

The importance of this point was driven home when my son Ken happily went off to college at age 18. One of the first weekends there, he was goofing off with friends, fell and got a concussion. I got the call from the hospital and realized in a panic that this highly-experienced attorney had let her son go off to school without doing powers of attorney! While I normally never coerce my clients to sign these documents, I should confess I put some “pressure” on him to get them done as soon as possible after that little mishap.

More details on the power of attorney for health care:

A power of attorney for health care is not only the necessary tool to make sure you control your health care even when you cannot make decisions anymore, but it is also a gift to your loved ones. Typically when I am drafting a power of attorney for a client, I will go into detail about the client’s wishes and preferences for certain types of care, such as long term care, artificial nutrition and hydration (feeding tubes and IV nutrition), end of life treatment, certain kinds of mental health treatment, and addressing some of the common issue that come up when a person has dementia. To the extent we can, we include information in the document so that it acts as a roadmap for the “agents.” I also strongly encourage clients to have frank discussions with their agents.

Typically, the agent’s authority to start making decisions about your health care will only become effective if there has been a certification that you cannot make those decisions for yourself. Typically this requires the written statement of opinion by two physicians, or a physician and a psychologist. However, a person could choose a different process – such as making the agent’s authority immediately effective – and include that in the power of attorney document.

There are helpful tools that I encourage clients to review and use, such as those that have been developed by The Conversation Project. Click  here for  a link to their “starter kits” for health care conversations. By having these conversations, a person provides guidance to the agent so that the agent can carry out the person’s wishes.

As part of the health care power of attorney, I recommend you also include:

  • Medical releases (called “HIPAA releases”) that allow your named agents to get information about your health from your medical care providers.
  • “Living will” language that details your preferences for end of life treatment. This is intended to be a direction to your physicians about whether or not to use or continue life-sustaining measures, even if your named agent is not available to act.  In Wisconsin this can be done as a separate document, but it can also be incorporated directly into your power of attorney, which is how I handle it. I do it that way because I think the end of life discussion requires a broader approach than the limited circumstances included in the living will language.

The State of Wisconsin has developed forms that can be used for the Power of Attorney for Health Care and the Living Will. These can be found at this link.  All in all, I think the health care related forms that have been done by the State of Wisconsin are good. There is no reason a person could not use these in a pinch. Also, the State Bar of Wisconsin has produced an excellent book called “A Gift to Your Family” which is available for a small fee, and at some times of year (often in April) is available for free.  This book goes through the process for putting together a power of attorney for health care and includes a copy of the state form and other supplemental documents. In Ozaukee county where my office is located, the local bar association holds a free clinic each fall to assist residents in completing powers of attorney for Health Care.

It is helpful to have the guidance of an elder and special needs law attorney in putting a health care power of attorney together, although you are not required to use an attorney. The help of an attorney can ensure that the document is executed and witnessed correctly, and that it includes some of the broader language regarding your preferences that is not in a standard form.

More details on the power of attorney for finances:

The power of attorney for finances is a comprehensive document that allows your agent to take action on your behalf in regard to financial and legal matters. You can choose how much or how little power you want to give your agent. This should be carefully done in consultation with your attorney, because the decisions involved in this document should be made with adequate advice.

The kinds of powers that can be included in a durable power of attorney range from simple transactions such as handling your bank accounts and paying your bills, to complex transactions such as creating and funding a trust on your behalf. You can choose to give your agent the power to make gifts or change beneficiary designations, which are very significant powers. You can also give your agent the ability to handle applications for benefits such as Medicaid, or to arrange for care of your pets, or to exercise powers related to marital property, such as signing a marital property agreement. Your agent could also bring a lawsuit on your behalf, buy and sell real estate, or run a business. The potential scope of power is very broad, which is why it is important to understand the pluses and minuses of each thing.

There is also a form available for this in Wisconsin, but I absolutely do not recommend it. The Wisconsin form is incomplete, inadequately explained, and likely to create problems down the road for anyone who needs to engage in Medicaid planning.  (Keep in mind that my opinion on this is not humble. It is based on years of experience having to fix the problems that were created when a person used the state form power of attorney for finances.)

A power of attorney can also be used inappropriately by an agent with ill intent, or by an agent who does not know his or her role, and therefore it is extremely important that you carefully consider who to name as your agent, and that your agent be appropriately educated about his or her duties. Also, be aware that if your agent acts inappropriately, he or she can be prosecuted criminally or pursued in civil court.

My spouse has Alzheimer’s. Is it too late for him to sign a power of attorney?

In order to execute a power of attorney, a person must have “capacity.”  This means the person must have the appropriate level of understanding to know what he or she is doing. Many people who have Alzheimer’s will have capacity to do estate planning such as powers of attorney for quite awhile after being diagnosed. Even in cases where a person’s health care power of attorney has been “activated,” the person may still have capacity to do a new power of attorney if it becomes necessary. It is a person-specific issue, so it is important to get advice and input from an elder law attorney and if necessary, the person’s physician.

What if I become incapacitated and I don’t have powers of attorney?

Well, if you have not executed power of attorney documents, and you are an adult (18 or over) then if you become incapacitated it will be necessary for someone to go through the court process of having you declared incompetent and being appointed your guardian. Not only is this process costly and stressful for everyone involved, it also puts the courts in charge of decision-making and many aspects of your life, and the guardian must obtain permission from a court for certain significant decisions.

More tips:

Below is a list of additional considerations and tips about these two documents.

  • DO: execute both documents – or a combined document that meets all necessary legal requirements (such as witnesses) for both.
  • DO: Consider carefully the powers that you want to give your agent, and those that you do not want to give. Get advice on the consequences of your choices so as to avoid a result you did not intend.
  • DO: Pick an agent who is willing and suited. The person who would handle your finances well may not be the best person to make medical decisions, and vice versa.  Talk to your intended agent to confirm whether he or she is willing to serve if needed. Take special caution in considering an agent whose geographical location or practical life circumstances (such as a job with lengthy periods of travel) would make it difficult for that person to act quickly or over an extended period of time.
  • DO: discuss your wishes with your agent before problems arise, so that he or she has the best possible information upon which to act.
  • DO: Give copies of the documents (not originals) to your agents, as well as to all of the professionals, institutions and others who would need to know that the documents exist.
  • DO NOT:  Appoint “co-agents.” This can create a situation where your wishes are not followed if both “co-agents” cannot agree or cannot be reached. It is better to appoint a single agent with instructions that the agent consult with the other person whenever possible.
  • DO NOT: Sign a Power of Attorney document that someone else has drafted, without reading it thoroughly.
  • DO NOT: Lock your document away in a safe deposit box, attorney’s office or other place that is not immediately accessible, unless you have distributed copies.
  • DO NOT: Give away “gifting” power lightly. Educate yourself on the types of “gifting” power, the consequences, and the ways to phrase these powers to make them most effective for your individual purposes.
  • DO NOT: Wait until there is a crisis to execute a Power of Attorney. Do it now!




Posted in Elder Law, Estate Planning | Tagged , ,

What Does “Memory Care” Really Mean?

“We are looking at Shady Acres for Mom – it is a Memory Care facility.”  This is something usually said by a family member with a certain level of satisfaction. Now, in this story, Shady Acres is a fictional place, at least that is my intention. But because Shady Acres is a Memory Care facility, the family is convinced it is going to be the perfect place for their mother with early stage dementia, and that she will receive better care there.

I steel myself. It is time to stick the pin in the balloon. I’m sorry, I really don’t mean to let the air out, but I have to tell you something important. You need to know the truth. I can tell you are trying to do the best thing for your loved one so you need to know this.

“There is something very important you need to understand about memory care,” I start.

“It doesn’t mean anything. It is a marketing term.”

Then I have to explain what this means, since the family has been convinced that “memory care” is something specific, and they are usually shocked at the words that just came out of my mouth.

The first part of the explanation goes something like this: “The kinds of assisted living facilities you are looking into for your mom all have a certain level of licensing from the state. The kind of licensing is based on the level of care they provide. This facility is licensed as a Community Based Residential Facility, or CBRF for short.”

This is true of most facilities that hold themselves out as “memory care” in Wisconsin, where my elder law firm is located. The level of care in a CBRF is one level below that which is required to be provided in a nursing home. My clients usually use these names interchangeably. Most of my families generically refer to the places they are looking at as “nursing homes” or “assisted living” without really understanding the differences.

Those differences are important. Nursing homes have a higher level of care, with strict requirements for the number of nursing staff hours required to be provided per patient.  A CBRF has a much more generic staffing requirement, essentially one person on staff at all times in most cases, regardless of whether there are 3 residents or 30. An additional requirement states that the CBRF needs to have “sufficient” staff to care for the residents. During a client meeting, I help families understand more about what this might mean for their loved one by going into more detail than I can do here.

And how does “memory care” fit into these requirements? It doesn’t. So I launch into the second part of my explanation: “Memory care is not a recognized level of care like nursing home or CBRF. There is no additional staffing, licensing, or training required in Wisconsin for a facility to call itself ‘memory care.’ That bears repeating. In Wisconsin, a facility does not have to complete any special training or certification to say it is ‘memory care,’ and it does not have to have any more staffing than any other place of the same licensing classification.” 

So what it boils down to is that “memory care” is a marketing term chosen by the facility itself to hold itself out to people with Alzheimer’s, Dementia and other cognitive issues. You cannot assume it means anything. You need to do your homework.

Don’t get me wrong – I don’t mean to say that memory care facilities are bad. Possibly, in calling itself “memory care”, the facility is giving you information that it truly wants to provide  special services to people with dementia. There are “memory care” facilities that genuinely pride themselves on the quality of care they provide for this population. You will be able to figure this out by asking a lot of questions:

  • What do you mean by “memory care?”
  • What training do you provide your staff for caring for patients with dementia?
  • What training do you provide your staff for dealing with people who are agitated or aggressive?
  • Do your staff have any special licencing or certifications related to “Memory Care?”
  • What activities do you provide for people with memory loss? Why do you believe they are appropriate?
  • What is your caregiver/resident staffing ratio?
  • How many times have you terminated a resident’s tenancy for behavior related issues?
  • How many times have you contacted police or adult protective services or a crisis team to respond to behavior related issues?
  • How many times have you terminated a tenant’s stay because you could not provide sufficient care for their needs?

For more tips, there is a detailed list of questions available on the Alzheimer’s Association website. You can find it here.

Once you dig deeper into what the facility can actually provide, you will understand which facilities genuinely are dedicated to serving people with memory issues, and which are simply trying to get your business. I recommend to my clients that they explore a variety of places, not only the ones that call themselves “Memory Care.”

An example from my own caregiving experience is on point. The first place I moved my mother into was one of the highly recognized “memory care” facilities in the area. It had a good reputation from what I could dig up. After Mom had been there for awhile, I noticed she was losing a lot of weight. I asked the staff about it and they said that often she stayed in her room during mealtimes and did not eat. My next question was “Well, what kind of things do you do to encourage her to eat?” Eating had never been a problem when she was living with me. In fact, it was the opposite, because she would often take a snack and fifteen minutes later, take another since she forgot she ate the first one. The response to my question was, “well, when it is mealtime, our activities director comes and knocks on the resident’s door, and if they come out, they come out. If they choose not to, that is up to them.” I followed up: “What if the person was busy in the bathroom when they knocked, or maybe did not hear, is there a follow up?” Answer: “No, we don’t have the staffing to do that. The residents make their own choices.” OH COME ON. These are people with Alzheimer’s. In five minutes they will forget that someone knocked, it doesn’t mean they shouldn’t eat! How can a person make a “choice” not to eat when they forget that eating was offered in the first place? I ended up spending several weeks bringing mom food and sitting with her while she gladly ate every bite, until she gained weight back.

It did not take a long time before I decided to move Mom out of that “memory care” facility, and into a very nice, smaller facility that did not call itself “memory care.” It just called itself a CBRF. Exactly like the first facility in terms of licensing. But the care was more personal and attentive. The staff there were well trained in working with people with dementia. Mom never skipped a meal there, because she was encouraged to join the mealtime crowd. It wasn’t the branding that mattered. It was the training and care.

Don’t hesitate to ask all the questions you need to before making decisions, and now that you know what “memory care” really means – and does not mean – you can focus on the services and training instead of the name. Because it is the service, training and care, not the name, that will make the difference for your loved one.

I hope that someday soon there will be regulations in place that require a facility holding itself out as Memory Care to meet certain requirements of training and staffing. If you would like to see this too, let your legislator know.

Posted in Elder Law | Tagged , , ,

New VA Pension Rules Will Bring Changes in Planning for Veterans Needing Income for Care

A new rule has been published by the Veterans’ Administration that relates to veterans “pension” benefits. This rule makes sweeping changes to the eligibility rules for pension. It takes effect on  October 18, 2018. A copy of the rule can be found here.

This article highlights a few of the changes.

First, an explanation of VA Pension. Its a bit misleading. “Pension” is not military retirement pay. It is an income benefit for veterans who meet certain criteria related to their net worth, and have served in a war-time period.  “Pension” is often called “aid and attendance” but that is a bit misleading also, because “aid and attendance” is just one of the criteria that affects the amount of the pension.

“Pension” is also NOT health insurance. The way I explain it, VA Pension is sort of like Social Security. It is a fixed amount of money you get every month, to use the way you feel best. It is not enough to cover the cost of nursing home care, although it could provide income that, when added to your other income, might make assisted living more affordable.

On the other hand, when it comes to people who need long term care, Medicaid is health insurance that will cover those costs if you qualify. This is why, when it comes to planning,  I encourage my clients to choose strategies that will allow them to qualify for Medicaid over VA Pension, in those cases where we need to make a choice.

In the past, planning strategies for the two programs were very different. With these new changes, the programs are more aligned. But still, there are differences. Mastering the maze of this set of choices is best done with the help of an elder law attorney.


36-month transfer penalty: The new VA rule imposes a 36-month penalty for transferring assets without receiving fair market value. This is similar to the Medicaid “divestment” laws that I have explained several times on this blog.

Fixed “net worth” eligibility rules: one of the mysteries of VA pension planning in the past was the fact that the rules to qualify did not have fixed numbers attached, but rather were based on “need.” Now, there are some numbers that will make our planning clearer. The net worth test is $123,600 for 2018 and is set to be adjusted on a regular basis. There are some assets that are not counted, such as a home and a car.  The test is a little different than Medicaid rules in that it takes into account income as well, and subtracts medical expenses.

Homestead exclusion: The homestead exclusion is limited to the home and a 2 acre area surrounding the home. This could pose a problem for some people in rural Wisconsin where the lot is much larger.

I am just starting to study the new rule, so I will leave the analysis here for the time being. There have also been concerns raised about whether or not the VA had authority to create this rule. Stay tuned.





Posted in Elder Law

For the thousandth time: no, you do not need to sell your home to get Medicaid! Addressing this and other myths told by nursing home social workers and Medicaid caseworkers.

This week I met with a client and had a conversation that I have had at least a thousand times (or it felt that way). The client (we will call her Jean) was power of attorney for her mother, who was a widow. Jean had just placed Mom in a nursing home. During the admission conversation the social worker told Jean, “Well, you will need to list the home for sale right away.” Questions about selling the home were on Jean’s list of things to discuss with me. Jean had made a call to a realtor who was coming out the next week to go through the home.

Sigh. Another case of bad information by the nursing home social worker. The truth is that a person does not have to sell his or her home to qualify for Medicaid. The home can be exempted from the Medicaid asset limit as long as the person “intends” to return home, even if that intent is only subjective, not realistic. Selling the home is often the OPPOSITE of what you should do, because if you spend down all other resources and still have the home, you can receive Medicaid. If you SELL the home, you need to spend the additional amount you received from the sale before you will qualify.

There are some practical concerns that come with a decision not to sell the home, such as how to pay for the ongoing expenses such as insurance. Those should be discussed with an experienced elder law attorney to come up with a plan.

It’s not Jean’s fault she was bamboozled by the nursing home social worker. When it comes to Medicaid eligibility, the biggest source of misinformation leading people to make bad financial decisions are the social workers in the nursing home or assisted living facility. The next worst are the Medicaid caseworkers themselves. Third in line are neighbors, family and friends. I don’t blame this third group and luckily, most people I meet with will relay the family /friend information with a hint of skepticism so they already know not to completely trust what their friends and family say. The sad thing is, most people DO trust nursing home social workers and, like Jean, have already taken steps down the wrong path before they get to our office. At least in Jean’s case I was able to tell her to put the realtor on hold until we had a handle on the situation.

It’s time to clear up some of the myths that I hear frequently from clients. Here is an excerpt from a handout that I give when I explain the Medicaid rules to laypeople at community presentations.

MEDICAID MYTHS And Practical Pointers

“Medicaid planning,” or getting help paying your family member’s nursing home costs or home-based long term care costs through the Medicaid program, is not a do-it-yourself project. Unfortunately, people are often steered in the wrong direction by friends, family members, social workers, medical personnel, or case workers. Here are some of the more common “Medicaid myths” that make the process so baffling.

MYTH: I have to use up everything I own to get Medicaid. In fact, you don’t have to be completely destitute to get Medicaid. For example, in most cases, you don’t have to sell the home. You can also keep some funds, personal items, a car, funds for burial, business assets, and some life insurance. In cases involving a married couple where only one spouse needs care, the assets that can be kept are even more generous. It is also sometimes a myth when nursing homes tell a married couple that you must spend down to $50,000.

MYTH: I have to sell my home to qualify for Medicaid, or, the State will take my home if I apply for Medicaid.  As explained above, you do not have to sell your home to get Medicaid. In most cases, the home is not counted as an asset as long as you live in it, or if you intend to return home (even if this intent is not reasonable from a practical standpoint). And, it is not true that the state will “swoop in” and take your home away from you once you are on Medicaid. The state does not take your home while you are alive, even if you no longer live there.

MYTH: If I give away assets to family or friends, I won’t ever qualify for Medicaid. It is true that some transfers of assets disqualify you from getting Medicaid for a period of time, and this area is something to be extremely careful about. The value of the assets and the timing of the gifts determines how long you will be disqualified. However, certain transfers will not disqualify you. Sometimes it depends on who receives the assets; other times, it depends on the type of property you are transferring. For instance, you typically will not be penalized for transferring property to your spouse. If you are single, you can even transfer your house to your child if that child has cared for you and lived with you in that home for two years or more. The point is, not all transfers cause problems with getting Medicaid — ask an experienced elder law attorney what rules apply.

MYTH: I have to wait five years after giving anything away in order to be eligible to get Medicaid. Medicaid rules do penalize some transfers of property, and the Medicaid agency will ask if asset transfers were made within the past five years. The government does not want people “planning to be poor.” But the length of time you have to wait to be eligible isn’t always five years. It depends on five things:

  • First, was this the kind of transfer that’s penalized? (See above).
  • Second, when was the transfer?
  • Third, what was the value of what was transferred?
  • Fourth, what is the formula for calculating the penalty period? Wisconsin figures out how much it costs, on average, to pay for a day of nursing home care. They then divide that figure into the value of the asset that was given away in order to come up with the penalty period.
  • Fifth, even if the transfer would otherwise cause a penalty, are there any exceptions to the rule that apply to this situation?

That being said, it is important to remember that under current laws, this penalty will not start until you are in a nursing home and otherwise eligible for Medicaid, and apply. This means that if you do receive a divestment penalty, it will be imposed at the time where you are already ill, and probably unable to financially afford your care during the penalty period.  And this could mean that you are actually going longer than five years before you are eligible for Medicaid. So under the current law, in many cases you might want to wait five years after making gifts, before you apply.  It is particularly important to talk with someone who knows the ins and outs of this law before you take any action regarding gifts.

MYTH: I can keep all our marital property and my inherited property when my spouse gets Medicaid. Medicaid rules generally consider all the assets in either spouse’s name when one spouse enters a nursing home. However, there are certain property protections for the at-home spouse. Those protections are based on a percentage of the couple’s “countable assets,” which generally consist of savings and investments, real estate and things like excess life insurance. In Wisconsin the range for 2018 is between $50,000 and $125,600. There are also other rules that will completely exclude certain property, such as the retirement assets of the at-home spouse. It is important to remember that with careful planning, the amount an at-home spouse can keep can be maximized.

MYTH: If I put my property in my spouse’s name, I will be eligible for Medicaid. No. See above.

MYTH:  I can “protect assets” by giving them to my kids who will pay for my care if I need it. This is, in my opinion, the biggest myth of all. Unfortunately, many lawyers who do Medicaid planning, even good lawyers, also promote this myth. The hard truth is that giving assets away does not “protect” them. It gives them away. They are no longer yours. No matter how trustworthy your kids may be, when the assets are in their hands, those assets are subject to any misfortune that may befall your children such as divorce, accident, or their own unexpected disability. While there is some asset transfer planning that may be appropriate based on your wealth, life priorities, preferences, and risk tolerance;  and while that planning could involve making gifts to your children if you choose to do so after weighing all the options and consequences, you must always understand that a gift is a gift.

MYTH: Medicaid rules that applied to my neighbor when he went into a nursing home will also apply to me. This area of the law has changed quite a bit in the last few years, so don’t assume the rules that applied to your neighbor are still in effect. For example, under federal Medicaid law, there’s no longer a three-year look back period for transfers of assets. As of 1/1/09 in Wisconsin, it is five years.

MYTH: If I enter a nursing home as a private pay resident, in order to use up my assets before I can get MedicaidI can only “spend down” my assets on medical or nursing home bills. This is wrong for several reasons. First, you are allowed to keep certain limited property, as we discussed earlier. Second, you may be able to protect some of your assets — by buying certain non-countable assets or by making certain transfers to family members, for example. Federal law prohibits nursing homes from telling you this myth if the facility is Medicaid certified. Unfortunately, some nursing homes try to force people to stay as private pay, since the rate is usually higher than Medicaid reimbursement rates.  A nursing home CANNOT prevent you from applying for Medicaid if you are financially eligible.

MYTH: My power-of-attorney agent automatically has the power to take property out of my name, if I ever need Medicaid. Wisconsin requires that you explicitly include a “gifting power” for your agent in your financial power of attorney document, in order for your agent to be able to retitle your property. If you want your agent to be able to transfer assets to provide more for your spouse and/or children, in particular, you should say so in your power of attorney.

MYTH: I can only give away $15,000 per year under Medicaid rules. This is a double myth! This refers to a federal gift tax rule that has nothing to do with Medicaid law. We’re talking apples and oranges here! A gift of $15,000 per year will probably trigger a Medicaid penalty, unless an exception applies.

Remember, these are all myths.  And keep in mind that the answers given above are general rules. Consult an experienced attorney to determine how the Medicaid rules apply to your situation.

Practical Pointers:

  1. Money is good: the more funds you have, the more options you have in terms of your care.
  2. Read the Contract: Make sure to carefully read any admissions contract to a long term care facility. Even though the nursing home cannot prevent you from applying for Medicaid when you are financially eligible, more and more often there are other clauses that could create potential liability if you or your agent do not read them carefully. Have a lawyer review the contract.
  3. Do not tell a nursing home social worker or Medicaid caseworker that the person applying for Medicaid does not intend to return home. Remember that the exemption of the homestead only applies if the individual intends to return home, no matter how unrealistic that is. In almost 30 years of practicing elder law, I have only met a handful of people who truly did not ever want to return to their home. Most people do. So, that seemingly offhand question from the nursing home social worker or Medicaid caseworker “She’s not going home again is she?” should be responded to carefully, with a clarification that the resident intends to go home even if it might not be realistic.
  4. Don’t always believe the nursing home social worker or county economic support worker.  Now, this is not meant to disparage these well meaning people. They may want to help you through the process of becoming eligible for benefits. However, as an elder law attorney I see more clients who have been steered in the wrong direction by social workers and case workers, than any other set of people. These people do not fully understand the law, and are not motivated to make sure that you save the most assets you can save, or that you spend your money in places other than their facility.
  5. See a qualified lawyer: if you choose to get legal advice, make sure the attorney is an elder law attorney who practices regularly in Medicaid law. A general practitioner or your long term estate planning attorney, while good at what they do, may not know the ins and outs of the Medicaid law.
  6. IF YOU ARE A VETERAN or the widow/widower of a veteran, there is another program that might help with long term care costs: This is a program that is called “Aid and Attendance” and it is not well-known. It is important to get good information on the differences between Medicaid and Aid & Attendance, so that you can plan well.   
Posted in Elder Law, Medicaid | Tagged , , ,

Wisconsin Caregivers’ Tax Credit Bill Would Help Families Caring for Loved Ones with Alzheimer’s and Disabilities. Make your voice heard and speak up in support!

A bill has been introduced in the Wisconsin Legislature that would help families who struggle with the high costs of caring for a loved one with Alzheimer’s or other disabilities. The help would come in the form of a non-refundable tax credit designed to offset some of the expenses incurred by families caring for a loved one.

According to the Alzheimer’s Association, in Wisconsin alone, there are an estimated 193,000 people providing unpaid care for someone with Alzheimer’s or dementia. These unpaid caregivers put in 219,000,000 (that’s two hundred and nineteen MILLION) hours of unpaid care. If this care were valued it would be worth $2,775,000,000. (That’s two TRILLION 775 million dollars.) Caregivers make financial sacrifices – 48 percent cut back on spending for themselves and 43 percent cut back on saving because of the out-of-pocket cost of caring for someone with dementia. (The full report on the 2017 Alzheimer’s Facts and Figures can be found here.)

My family played roles as unpaid caregivers when my parents were  living with me. My brother Richard moved back to Wisconsin from his home in New Mexico, to care for both of our parents when they moved in with me after my father was struck by cancer –  he had been my mother’s primary caregiver.  I took time off work to take my mother and father to doctors appointments, and made modifications to my home. My brothers Brad and Bob came in to provide respite, and Brad helped my parents to manage their finances. We are not alone, many families do the same thing. We were, and families like us are, simply doing what needs to be done.

The Wisconsin bill that would give caregivers a tax credit is SB 528 / AB 631. You can find the full text of the bill here. It was introduced on a bipartisan basis by Representative Ken Skowronski and others. It provides a non-refundable tax credit of up to $1000 for people who incur expenses for supplies and services needed for a loved one. The credit is based on half of the qualifying expenses. In other words, if a person spent $2000 in qualified expenses for a loved one, the tax credit would be the full $1000. The credit is limited to people who have an adjusted gross income of $75,000 or less for single filers, and $150,000 or less for joint filers. The bill is not limited to people with Alzheimer’s, it would include costs incurred for caring for an adult family member with any type of qualifying condition.

How would it work? Here are some examples of what could be used for the credit for a qualified filer:

  • Spending $800 to have a grab bar installed in the shower of your home would get a tax credit of $400.
  • Paying $1500 in a year for an aide who comes in when you need to be away from your loved one would net a credit of $750.
  • Spending $2000 on legal fees related to your loved one would allow a credit of $1000.
  • Spending $500 on incontinence supplies such as Depends in a year would provide a $250 tax credit.
  • A caregiver who lost four hours of wages due to having to take unpaid time off to take a loved one to the doctor would not get a credit under this bill because the bill does not cover lost wages.

By allowing families to recoup some of those out of pocket costs, this bill would help ease the burden of caregiving. It is a step in the right direction.

What happens next? The bill is assigned to the Committee on Mental Health, and is scheduled for a public hearing on December 12, 2017, at 11 a.m. in Room 225 NW of the Wisconsin State Capitol. The details of the hearing are here.  As a matter of fact, this bill is one of six that are scheduled for hearing that day, all of which are bills designed to improve care, services and awareness related to Alzheimer’s and Dementia. A summary of all six bills can be found here.

Here’s what you can do: Your legislators need to hear from you. Share your stories as caregiver for someone with Alzheimer’s or other special needs. Submit written testimony in support of the bill (and any of the others as well). Written testimony should be submitted to Representative Tittl, who is the Chair of the Assembly Mental Health Committee. You can do this by sending your testimony electronically to the committee clerk: . If you prefer, you can testify in person. Even if you are reading this after December 12th, you should still contact your own legislator to express support for the bill. You can use this map to find your state senators and representatives.

In Wisconsin, we are beginning to make progress toward much-needed care and support for people with Alzheimer’s and their families. Let’s keep moving forward!


Posted in Elder Law

Promissory notes are back!

In 2015, Wisconsin essentially outlawed “promissory notes” that had been in use for years as a Medicaid planning tool. The 2015 law created so many strings on the use of these notes that it was almost impossible to effectively use them as a planning tool. A group of elder law attorneys called the Wisconsin Chapter of the National Academy of Elder Law Attorneys (WI-NAELA) sent a letter to the federal Medicaid agency stating our opinion that the new law was in violation of Federal Medicaid laws. And now…..promissory notes are back! Wisconsin has issued a memo withdrawing the policy that it put in place following the enactment of the law. The law itself has not been rescinded, but the policy has been withdrawn and a new policy is in place allowing promissory notes to be used if specific requirements are met.

What is a promissory note? A promissory note is a tool whereby we can take a sum of money that would otherwise be considered an available asset for Medicaid eligibility, and turn it into an income stream. We do this by loaning the excess funds to a responsible person or persons in return for regular payments over a period of time. A promissory note is also something that could be used to cover the costs of care during a penalty period if a person has divested funds.  The promissory note has to meet certain requirements regarding the interest rate to be used, payout period, and other terms. You should ask an experienced elder law attorney about these requirements.

How does it work? Here is an example:

Bob and Jane are a married couple, and Bob is in a nursing home. He is 80 and Jane is 75. They have $300,000 in liquid assets in savings, checking and CDs.  For Medicaid, their asset limit would be  $120,900 plus $2000. (This is based on spousal impoverishment rules which are explained generally in this post, although the figures have changed a bit.) Right now, they currently have $177,100 more assets than allowable. Assuming they can find something else to spend $100 on, we are working with a figure of $177,000 to do the promissory note. (Their elder law attorney might tell them there are other ways to spend down that would be a better fit, especially if they have debts or a mortgage to pay.)

Assuming they decide to use the promissory note, the note could be structured to make monthly payments to Jane over a period of time no longer than her life expectancy. Using a period of 12 years, and the interest rate that would apply this month, the monthly payments would $1424.02.  Bob would be immediately eligible for Medicaid if this technique were properly used.

How does it help? The advantage is that getting eligible for Medicaid allows a person to buy care at a lower rate. So instead of spending all the excess money paying the private rate to a nursing home, the person pays a lower rate to receive the same care through Medicaid. It may also have the result of protecting additional funds in some cases. It is a relatively quick process to choose this route.

Are there concerns? Yes, there are downsides to using promissory notes, and they might not work well for everyone. First, interest must be paid by the borrowers so they do not get the money for nothing. Second, the monthly payment is an income stream. For a single person, most of this income will need to be paid to the nursing home. For a couple, the additional income may affect whether or not the nursing home spouse can transfer any funds to the spouse living in the community. Third, if there is not someone who is financially stable and reliable to be the borrower, this process will not work. Fourth, if the lender dies before the note is fully paid out, and does not have a surviving spouse or a disabled or minor child, the State will be able to obtain some or all of the funds through Estate Recovery, depending on how much was paid in Medicaid benefits. Even so, because the care costs less per month than paying privately, it may still result in some savings.

There is no one-size-fits all approach for using promissory notes. Factors such as income, age, whether the person is married or not, and the amount of assets to be used will all affect how useful they will be in any individual case.

It is good to have these back in our toolbelt, especially since many elder law attorneys felt the 2015 law was improper. If you would like to see whether this is a good fit for you in Medicaid planning, make sure you reach out to an attorney who is a member of the Wisconsin chapter of NAELA since these things are discussed regularly among attorneys who are members of that group. Both of the attorneys at Wessels Law Office, Attorney Carol Wessels and Attorney Jessica Liebau,  are members of WI-NAELA. You can find NAELA members in your area of the state by going to and using the Find a Lawyer feature.




Posted in Elder Law

What do you and your doctors know about palliative and hospice care? Probably not enough, and that needs to change.

At the #Alzforum 2017

In March, I took a trip to Washington, D.C. with close to 1300 other people. The purpose of our trip was to take part in the Alzheimer’s Advocacy Forum, which is an event where participants are educated about important legislative issues related to Alzheimer’s, and then spend time talking with their representatives in Congress about those issues.

This year, one of the issues that was central at the Advocacy Forum was the need to increase awareness of certain services that can make a critical difference in the quality of a person’s life when living with Alzheimer’s or other illness. These services are called “palliative care” and “hospice care.” The focus of palliative and hospice care is to provide services and support that improve the quality of life and that reduce pain and discomfort for a patient with serious illness. The need for education about palliative and hospice care is the focus of legislation that was introduced by Wisconsin Senator Tammy Baldwin and  Senator Shelley Moore Capito (R-WV) in the Senate, and Representative Eliot Engel (D-NY- 16) and Representative Tom Reed (R-NY- 23) in the U.S. House of Representatives. The bill is  S.693/H.R.1676. Its full name is the Palliative Care and Hospice Education and Training Act. PCHETA for short.

Hospice care is for a patient with a terminal illness who is nearing the end of  life. It includes services such as counseling for the patient and family, spiritual support if desired, pain medications, medical equipment such as a hospital bed and oxygen, nursing support and home health aides, and the development and implementation of a plan of care. The hospice agency will also provide grief support to the family after the patient’s life has ended. Many hospice patients prefer to receive these services in their home, and a hospice agency will come into the home to meet with the patient and family / caregivers, and to deliver services. Hospice care can also take place in a residential facility or an inpatient hospice facility.

Both of my parents received care through hospice. For my father, he received hospice care when his cancer was terminal and he made the choice to stop curative treatment. My father benefited from the support, services, pain management, management of his symptoms and the care that was provided to him in my home, where he and my mother lived. He was much more comfortable, and as a family providing care to him, we had support from professionals. My mother received hospice care two times in her life when she was in the later stages of Alzheimer’s. Both times, she had lost a large amount of weight due to not eating. Hospice caregivers provided one-one-one attention in the assisted living facility where she lived, and she improved to the point where she no longer needed hospice services. (I have some concerns about the criteria for hospice for patients with Alzheimer’s that should be the subject of a separate post. I think it is too difficult for patients to be considered at the end of life so as to qualify for hospice with Alzheimer’s, and hospice services should actually start sooner.) But once Mom qualified, the services improved her health overall and gave her a higher level of support than she would have received without hospice.

Over half the patients with Alzheimer’s are in hospice at the end of their lives. But hospice care is not just for people with Alzheimer’s, it is available for any type of terminal illness. Hospice care can be fully covered by Medicare if the patient has Medicare and elects to participate. Electing hospice means the patient gives up the ability to obtain treatments to cure the disease, such as surgery and radiation. Once the patient makes this election, the kinds of hospice services that are covered are very broad.  However, the patient can always change his or her mind and go back into the regular Medicare program.

Palliative care is a kind of care that has a goal of managing pain and other symptoms and improving the patient’s safety, comfort and quality of life. It is not limited to end of life treatment. A person can request palliative care at any stage of a disease or illness. Whether or not it is covered by Medicare or other insurance will depend on the kinds of services being provided, but many palliative care services are covered.

Cherry Blossoms in Washington DC. Because you can’t get enough beauty in life.

Palliative and hospice care can reduce the chances that a patient with a serious illness would need an acute hospitalization, because the patient’s symptoms and pain are steadily managed. But not enough people know about hospice, and even fewer know what palliative care is.  There is a need to increase the use of these programs, and it starts with education. Patients won’t use the services if they don’t know about them, and patients won’t know about them if their health care providers are unaware.

PCHETA would change that.

PCHETA establishes palliative care training programs for health professionals. By doing this, the chances that palliative and hospice care will be recommended by providers and used by patients will increase. More providers will know how to deliver services to a growing population who will need them.

PCHETA also would launch a national palliative care education and awareness campaign. This would inform families about the benefits of palliative care and how to access the services.

PCHETA would also enhance research in palliative care to determine how to use the services to improve the quality of patients’ lives.

The Alzheimer’s Association has additional information about PCHETA and why we need this legislation. You can watch the short video below or click here. 

Please call your senator and representative to ask for their support of the PCHETA bill (or call Senator Baldwin to thank her!) Hopefully by the time we return to Washington DC next spring for the 2018 #Alzforum, we will have a law to celebrate.

Meanwhile, if you or a loved one are facing a serious illness – ask your health care providers about the availability of palliative care, where a team of professionals can help you develop and implement a plan to maximize your quality of life. If you or a loved one have a terminal condition, please educate yourself about hospice care so that when the time comes, you can benefit from this service. The National Hospice and Palliative Care Organization has a website where you can learn more.

Thanks Senator Baldwin for introducing #PCHETA. This is our Wisconsin contingency, meeting with Senator Baldwin in Washington for the Alzheimer’s Forum.


Posted in Elder Law | Tagged , , ,

Sign, Sign, Everywhere a Sign

img_0044Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you read the sign?

“Signs”  by Five Man Band

This weekend I placed signs in my yard. Signs for the Walk to End Alzheimer’s  in our area. These amazing events are going on all throughout the country over the next month or so. They are the primimg_0019-1ary fundraising events for the Alzheimer’s Association. Sticking the sign in my yard, and particularly that sign, when we are at the time every four years that I usually am putting a presidential candidate’s sign in my yard, brought me back to 2008 and the time that my mother was living with me. Or more appropriately, with “us” since my brother Richard had moved back from New Mexico to care for my parents in my home. My son Ken was with us too, and my other brothers also came to help out and give Dick and me a break.

My mother was an extremely well-read and intelligent woman. So when she was in the decline from Alzheimer’s, reading was one of the things that remained with her even into the later stages of the disease. As caregivers, we used that to our advantage. As many caregivers do, we often found ourselves repeating things because mom would ask about something over and over if it were an issue she was concerned about. We learned that if we wrote down the answer she would find it for herself. After the fourth repetition of “now what are we making for dinner?” I would write out: “Dinner Menu for Tonight: Baked Chicken, Potatoes and Salad. Carol is cooking. We eat at 7.”

The handwritten menu was really more for my sake than Mom’s. She had been the domestic commander-in-chief for 60 years. She was in charge of all the “washin’ cookin’ and cleaning.” It was completely natural for her to be concerned about what was going to be done for dinner. And it was completely natural for her to want to ask about it. The dementia simply took away her ability to remember that she had just asked five minutes before. It can be an extremely frustrating situation for a caregiver, but after awhile we took it in stride, and coped with things like written menus. My son Ken took the opportunity to try out different answers sometimes. I remember him telling Mom – in the space of a half hour – that we were having frog legs, squid and brussel sprouts for dinner, just to see how she reacted.   Squid got a quizzical look. But in any event, it was usually easiest just to keep answering, and try to find something to change Mom’s focus. I feel sad when I see a caregiver chiding their loved one with “You just asked me that question!” Although I was there at first too, until I learned that only made Mom feel bad and didn’t stop her from repeating.

When I think aimg_0034bout it, the repetitive questions were really the first signs of Alzheimer’s that we picked up on, well before the time that Mom and Dad ended up moving in.  The Alzheimer’s Association has a brochure explaining some of the signs of Alzheimer’s, and you can find it here.

Mom would often communicate in writing to herself or to us, with the word “SAVE” written on important papers or “READ” written on notes to us about how she was feeling, or her “reminders”  to make us feel more “at home” in “her” house. I kept one of my favorites and have posted it here, since it truly captured the Mom of that time. “Bless you.”

While the signs we tried were often effective, they did backfire from time to time. Mom loved my two dogs, Big Jake and Little Jake. She also loved to feed them, and forgot if she had just fed them 5 minutes before. Both dogs put on several pounds within the first few months of mom living with us. We developed a series of signs to help the situation. On the dog food box: “Velma, We feed dogs at 7am and 7 pm…..”   In a brilliant moment of inspiration, I enlisted our vet to help. Dr. Beatty wrote a letter on his letterhead, in large font. “PLEASE DO NOT FEED TABLE SCRAPS TO THE DOGS. Dr. Beatty” This was taped upimg_0021 on the wall near her spot at the dinner table, where the scraps had a tendency to “drop” from her hands to the eagerly waiting dogs. When I caught her in the process of palming a treat to the dogs, I would point to the letter. I would explain the dogs are on a special diet. Usually, she would understand and say “Oh. Alright,” and put the scrap back on her plate. But sometimes, if she were in a particular mood, when I would point to the sign, the response would be (sneer) “That Doctor Beatty. What does he know. All he wants to do is sell expensive special dog food.”   Followed by a “plunk” of the scrap into the happy dog’s mouth. The sign’s demise is evident in the picture here – she ultimately decided it was best to simply rip it off the wall, crumple it up and throw it away.

When mom’s activities took a somewhat dangerous turn, I thought I could stop it with “strongly worded signs.” She was always concerned about energy use, and any img_0020-1light had to be turned off, any flashing light had to be dealt with. Which led to mom getting involved in some electrical misadventures. I came home one evening to find she had evaded Dick and managed to disconnect my entire internet system. Since we had internet based phones (well, until the day after this happened and I reinstated land lines) it was particularly unnerving that she had dismantled our ability to get emergency help when my dad was home in the final stages of cancer. So a few “strongly worded signs” were posted. With limited effect. In the wee hours one morning I was awakened by Mom standing next to my bed holding out my laptop (which was already emblazoned with the “Velma: Do not touch this!!!” sign) exclaiming “I just can’t get this little flashing thingy to turn off.” Sigh. So much for the strongly worded sign.

That event in and of itself was one of the signs to me that it was no longer completely safe for her to be unsupervised for any period of time. Her obsession with lights and disconnecting things might lead her to a dangerous situation. Signs like these are worth paying attention to as a caregiver, since they point the way to the need to re-evaluate things like supervision and possibly even the living situation.  When the time came for Dick to go back home later that year, as a single working mother who needed her sleep, I ultimately decided I could not care for mom at home any longer. But that is a story for another post.

As we moved into August of that  year – 2008 – it was time for me to put out the traditional presidential candidate signs. I live in Ozaukee County and often feel like the lone Democrat in a sea of Republicans. So it is important to me that I show my support for the Democratic candidate. I was especially proud to post my OBAMA sign, and in anticipation that the sign would be stolen, I ordered a batch of three. Mom and I enjoyed the moment, when I explained he was the Democrat running for president. ( Although Mom was born to a Republican family, she was Democrat all of her adult life since marrying my dad. She was active in politics and in political campaigning. When I was young, she got img_0025a kick out of posing me and my friend Laura – daughter of Republican neighbors – with McGovern signs. Laura’s parents were not amused.) And Mom was tickled that Candidate Obama was black. My parents were ahead of their time years ago in Whitewater, and offered a scholarship to one of the first black students at the University of Wisconsin Whitewater. Derek lived with us while he went to school. So Mom was delighted that a black man would be a presidential candidate. “Obama! What a beautiful name!” she exclaimed.

Our joy soured a couple days later when the first sign disappeared. “Assholes” I muttered against some unknown Republican vandal. I marched into my garage and pulled OBAMA #2 out of the trunk of my car. I placed it in the ground, in the same place.

That weekend, I completed something I had decided to do just for me. When Dad was ill, and we were in the throes of caregiving for both parents, somehow in the early months of 2008 I got the crazy idea that I should train for a triathlon. Training began with me riding an exercise bike in my basement, while dad smoked his pipe. As spring came around, I tried jogging around our lake in the morning. I kept working at it as a way to burn off the negative kinds of energy that inevitably come with caregiving.  Dad died before I completed my goal. But I did it in August when I finished a sprint distance triathlon. I felt him beaming with pride. When I got home, Dick and Mom had filled the wall of my garage with……SIGNS……..signs of joy and good wishes. Mom loved those signs and was so excited, even though she didn’t know what I had done. She knew we were celebrating something big.100_3377

In the excitement of the triathlon, I didn’t realize until later that weekend that the OBAMA sign was gone, again. Nothing could bring me down, so I planted another one in the ground.

In the middle of the work week, I came home and caught the thief in action. As I pulled into my driveway, Mom gave me a cheery smile from the front yard where she was “cleaning.” She had a broom in one hand, and the Obama sign rolled up and tucked under the other arm. My mother, the lifelong Democrat, was stealing my signs.obama-jpg

After absorbing the irony on so many levels – that I had falsely suspected Republicans who had done nothing wrong, and that Alzheimer’s had robbed my mother of her strong political identity – I decided the only solution was a sign on the sign. I put the Obama sign back in the yard, and put a postcard on top of the sign saying “Velma, please leave this in the ground.” It worked, temporarily. Which is really the best we can hope for with some of our little caregiver tricks. When the last sign disappeared, I gave up. It was over a year before I found where she had squirrelled them away.

Back to the sign in my yard today. It is a sign of the fight against this terrible disease that turned my mother into a sign vandal. It stands for help for caregivers that try all kinds of things – signs, pictures, music – to maintain that communication and connection with the loved ones who are falling away.  It is also a sign of HOPE. Hope that there will be a cure. There are more and more positive signs, thanks to the efforts of the advocates at the Alzheimer’s Association. Increased research funding. Positive research developments. Greater awareness. Signs we will keep looking for.

In a few weeks I will take up these signs and replace them with a HILLARY CLINTON sign. And when I do, I will think of Mom and cry a little, like I know I will every four years.  I know that the experiences as a caregiver, happy and sad, stick with me in a way that few other experiences do. And they give me the will to fight for a cure.

Sign up for a walk in your neighborhood. Do this. Can’t you read the sign?

To find the walk closest to you, click Here.







Posted in Elder Law

On The Longest Day, and in Alzheimer’s caregiving, many hands make lighter work.

"Kenneth Plaisted" "Carol Wessels" "team Valkyrie"

Team Valkyrie 2016 Thanks You!

In just two days from now, on June 20, 2016  Team Valkyrie will complete its second year of participating in The Longest Day, a fundraiser for the Alzheimer’s Association. The Longest Day is an annual fundraising effort held on the summer solstice – the longest day of the year. The purpose of the event is to recognize the long journey that is traveled by individuals living with Alzheimer’s and their families, and also the long hours put in by caregivers.

The Longest Day event begins at sunrise – 5 a.m. and ends at sunset – 9 pm. Teams are active all day long and their supporters donate money to the participants for their efforts. Donated funds go to the Alzheimer’s Association for support, education and research.

Wessels Law Office Team Valkyrie

Wessels Law Office Thanks You!

Anyone can form a team. And anyone can join a team. Teams can choose one activity, or a variety.  Teams can be small, or very large. And today, as I was thinking about our team, with 26 members as of this writing, I realized the analogy. If I were doing this event by myself, as a team of one, it would be very tough to make it the whole day. Although, I do have friends who are endurance athletes and probably could handle it by themselves. Not me. For me, I am blessed to have a big team so that at the end of the day, each one of us has done part of the work. More teammates make the day easier.

Team Valkyrie Carol Wessels Sunny Ken Plaisted

Sunny and Carol Thank you!

The same is true in caregiving for Alzheimer’s. The more people on your team, the easier the work will be. (Don’t get me wrong, I would never classify caregiving as “easy.” It is extremely challenging and also it can be rewarding.) When my dad took care of my mom he was, as are many spouses who come in to see me, a “team of one.” He was primarily responsible for caregiving for mom, he was the kind who didn’t want to “burden” anyone or ask for help (even though he was a volunteer driver for Interfaith Caregivers, helping others, for many years.) And that approach took its toll. His health suffered. So when I see those couples, one of the first things I do is give them the toll-free number for the Alzheimer’s Association Help Line: 1-800-272-3900 and tell them to call now and get connected to help.

My son Ken Plaisted thanks you!

My son Ken Plaisted thanks you!

The Alzheimer’s Association has extensive resources for caregivers in the Caregiver Center on its website, One of those resources is a Care Team Calendar found here: It allows you to create a Care Team, stay connected with the team by email, and also provide a calendar to coordinate care. Some of the families I work with use this calendar very effectively to coordinate rides to activities, “shifts” for various caregivers, physician’s appointments, fun activities, and other important items. When a volunteer is needed for one or more activities, the primary caregiver can send out an email and participants on the Care Team can sign up on the team calendar. The more people on the team, the more who can reach out and help, and lighten the load.

As we are reminded on The Longest Day, Alzheimer’s is a marathon, not a sprint. For myself, I doubt very much that I could run a marathon (never say never, but the doctor who fixed both of my knees strongly discouraged it.) But with the help of a team, even I could get that done.  If you or a loved one is facing Alzheimer’s, don’t go it alone. Get help, now. The more people on your team, the lighter the work will seem. And as I can tell you without a doubt, you are guaranteed to make friends along the path.

Sunny Plaisted

Sunny thanks you!

p.s. You can join my team or donate by clicking here, and donations can be made even if you are reading this after June 20, 2016.  You can see what Team Valkyrie will be doing, and join us at any events, by clicking here.  If you would like to form your own The Longest Day team or know more about the event, click here.

the longest day 2016

Posted in Elder Law | Tagged ,

A recent change in Family Care policies can make a BIG difference for married couples – read on…


On June 10, 2016, Wisconsin’s Department of Health Services updated its Medicaid Eligibility Handbook (called the “MEH” for short, and that is a pretty good description of how it usually makes me feel to read it.) This update changes the policy on what date is to be used for the “snapshot” date for Family Care.

What is a snapshot date anyway? And why should I care?

The snapshot is one of the terms we use in describing the process of applying for Family Care if you are a married couple. The rules that apply are called “spousal impoverishment.” I explained these in an earlier post, but it bears repeating here since it’s been awhile. This is not an easy concept, but I am hoping it will make sense when you read through these steps.  At the end, you will see why it is very important to understand how important the snapshot date can be for your future.

An explanation of basic Medicaid “spousal impoverishment” rules.When a couple is married, and one spouse needs nursing home care, or care in the community through Wisconsin’s alternative to nursing home care called “Family Care,” Medicaid will provide coverage of the cost of care if the couple meets financial eligibility rules. These rules are commonly referred to as “spousal impoverishment” rules but actually, that is a misnomer. The current set of rules regarding eligibility for married couples is based on federal law that was put into place by Congress to prevent spouses from becoming impoverished if only one needed nursing home care. Therefore, they really aren’t “spousal impoverishment” rules, they are “spousal anti-impoverishment” rules.

The spouse applying for benefits is called the “institutionalized spouse” – either in a nursing home or applying for Family Care (kind of a misnomer, since the whole point of Family care is to stay out of an institution.) The spouse who is not applying, and lives in the community – is called the “community spouse.” The “institutionalized spouse” could also be referred to as the “nursing home spouse” but today, we are talking about Family Care so I won’t use that term.

Assets: Under these rules, the allowable amount of assets that the couple can have to qualify for Medicaid is between $50,000 and $119,220, plus $2000 for the nursing home spouse.  The asset level is called the “community spouse resource allowance.” The exact target number within this range is based on half of the couple’s assets that are calculated as of the “snapshot” date.  But the minimum asset level that can be imposed is currently $50,000 and the maximum, absent some special exceptions, is $119,220. Assets in the name of either spouse are counted, even if the spouses have a marital property agreement in place between them.  The house is not counted in this total as long as it is worth less than $750,000. A few other things are not counted also, such as retirement funds that belong to the community spouse. Even with some exclusions, these totals are significantly less than what is estimated that a couple should save for a secure retirement.

Income: There are also rules related to income. These rules say that once the nursing home spouse is eligible (based on meeting the asset test described above), he or she may in some cases be able to transfer a certain amount of income every month to the community spouse.  This transfer is allowable only in cases where the community spouse has less than $2655-2980.50 in his or her own income per month. In those cases, the nursing home spouse can transfer income, but only enough to bring the community spouse’s total income to that level. The exact amount within this range is based on the amount of expenses for “shelter” that the community spouse incurs. So you take the appropriate income allocation amount, and subtract the community spouse’s income, and the difference is what the institutionalized spouse can transfer.

But today we aren’t here to talk income. Because the snapshot is all about assets.

Snapshot:  The snapshot date is extremely important because it is the date that is used to determine the couple’s initial assets for spousal impoverishment purposes. It is this calculation that forms the basis for how much the couple can keep in order to qualify for Medicaid. In other words, if a couple has $120,000 on the snapshot date, their asset level in order to qualify for Medicaid will be $60,000. If a couple has $200,000 on the snapshot date their target level will be $100,000. Because of the rules regarding minimum and maximum, if a couple had $80,000, even though the general formula of “half” would be $40,000, that would be less than the minimum of $50,000 so the target for that couple is $50,000.  Similarly, due to the maximum, if a couple has $500,000 their target level will be $119,220 (plus $2000) even though that is far less than half.

This leads to the phrase I repeat to my clients until they “get it”: Half of more is more, half of less is less.

When is the snapshot date?  Well, that is what this post and the policy change is all about. The snapshot date is more formally defined as the “first continuous period of institutionalization” which is easy when we are talking nursing home care. In that case, it is the first day that the person went into a medical institution for 30 days or more. This is usually a nursing home, but a hospital can be a medical institution also.

For Family Care, the new policy says that the snapshot date is the date that a person had a functional screen that determined they met the “functional” requirements for Family Care.

Ok, I am sorry, we need to take a little side trip to understand Family Care and then we’ll get back to the snapshot. (Are you beginning to see why people can’t understand Medicaid without the help of a lawyer?) For Family Care, the purpose of the program is to provide long term care and support to people who – without the services – would need to be in a nursing home. In order to figure out whether a person meets this criteria, an evaluation has to be made regarding that person’s needs for help.  This evaluation is called the “functional screen.”  This screen is typically performed by someone from your local county’s Aging and Disability Resource Center (ADRC). The ADRC person will come to your house or the assisted living facility, ask a bunch of questions and complete the screen using state criteria. I tell people it is not the time to be stoic – you should not downplay your need for help during this screen. If a person “passes” the screen it means they do need assistance with the required number of activities of daily living.

So, according to the new policy, when the person from the ADRC comes out to do that screen, if the spouse “passes” the screen meaning they do need assistance, that is the day that will be used for the snapshot.

Getting back to the concept of “half of more is more, half of less is less” – you will want to make sure all of your ducks are in a row before getting that functional screen, particularly if you are one of the couples whose countable assets are within the range between $100,000  and about $250,000. If you are in this range, you will want to make sure you do not spend money on discretionary big-ticket items before getting the screen. Don’t buy that new car, or put that roof on the house, or prepay for funeral plans until after the screen. Most couples in this case will want to get the screen sooner rather than later, before they spend a lot of assets. It could mean a difference of thousands of dollars in your community spouse resource allowance. An ADRC may request that you disclose finances when you call for the screen, and then may push back or tell you that you have too much money so it doesn’t make sense to get this screen, especially if your assets are high, but you have a right to it and should get it before lots of resources have been spent on your spouse’s care.

Also, there are things you can do proactively to raise the level of your assets in anticipation of that snapshot. You really need to talk to a lawyer to understand all of these options and to be smart about the process.

When you contact the ADRC for information about programs and services, the friendly person may offer to come out and do a functional screen. I suggest you see a lawyer before scheduling that, and recognize that at this point, that screening test has both functional and financial significance.

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