When “protection” goes wrong…financial exploitation bills introduced in Wisconsin go too far and need to be changed, not passed into law.

Sometimes, protection goes too far. That is what is happening in Wisconsin right now. Two bills were introduced in the Wisconsin Legislature yesterday. These bills purport to protect seniors from financial abuse. They are SB 428 (AB 482) and SB 429 (AB 481). However, the way they are currently written, in the guise of protecting seniors from financial abuse, these bills throw a competent person’s right to control their own finances under the bus.

SB 428/AB 482 (text here) relates to securities industries professionals. These are your financial advisors and investment brokers. Your Edward Jones, Thrivent, Morgan Stanley officers to name a few, as well as the smaller private brokers that you have trusted with your investments.  These are the people that hold your really big funds.

SB 429 / AB 481 (text here) related to financial institutions. This is your bank, big and small, local or national, your mortgage lender, or your credit union.

Both of these bills allow your financial provider to be a voluntary reporter of elder abuse. In other words, your banker can make a report to your local adult protective services agency if he or she suspects that something in your account may be financial abuse. I don’t really have a problem with that part (with the caveat, of course, that you should be able to opt out of this and prevent your financial information from being disclosed at all.) But there’s more. Some of the concerns are below, but these are just a few. If you would like a detailed explanation of  the concerns about each of these bills, click here.

If you are 60, you are vulnerable. First, let’s start with how the bills define a “vulnerable adult.” This is the person to whom these new procedures could be applied. A “vulnerable adult” in both bills is defined as anyone who is 60 or older!  Now, I work with a lot of people who are in their 60s, on issues like estate planning, guardianship of a special needs child, or elder law concerns regarding their older parents. My husband is 62. I can tell you, he is anything but vulnerable. Bill Gates is 64. Hmmm. Is he vulnerable?

How about Oprah? She is 65. She must be really vulnerable at that age (just kidding, Oprah.) She isn’t. Bill Gates isn’t, and my husband isn’t. Neither are the people I work with who are in their 60s, barring a diagnosis of early onset dementia or some type of illness affecting their cognition. But all of them could have their account transactions frozen under these two bills.

Having a standard age, especially one as young as this, without some objective evidence that the person is actually unable to care for their own financial matters, or is truly vulnerable to exploitation or influence, is a real insult to the autonomy of most individuals. It is ageist. Even if the standard age were 90, it’s time to recognize that age alone is not a sign of vulnerability. I have 90+ year old clients who are “sharp as a tack.”

It would be far better to use the definition in Wisconsin’s protective services law, which is not tied to age: “any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation.”

Account transactions can be frozen for long periods of time: Both bills allow the financial institution or investment professional to freeze a transaction on your account if the institution or advisor has “reasonable cause” to believe that financial exploitation is occurring, has occurred or may occur.  This means, without your consent, a transaction could be dishonored or stopped for a period of time. In SB 428, the “initial” period of the freeze is 15 days and can extend to 25 days. In SB 429, it is 5 days, but can be extended indefinitely. While these freezes are in place, you are potentially incurring bounced check fees, late fees or other penalties, none of which are required to be waived or paid by the institution.

Reasonable cause is not defined: These bills allow a transaction to be frozen if the provider has “reasonable cause” to believe that financial exploitation has occurred, is occurring or is about to occur. However, there is no definition for “reasonable cause.” It is whatever the banker or financial advisor says it is.

Hmmmm what is reasonable cause?

The bills could be improved by adding clear definitions of “reasonable cause” and requiring that the facts be documented in writing.

What is even worse, is that neither bill requires the financial services provider to receive any training regarding financial abuse or elder abuse.  So now, untrained individuals are making judgment calls on an undefined standard, and exercising control over your money.

You can’t get out of it: There is no provision in either bill for you, as a customer, to knowingly “opt out” of this “protection” or better yet, to knowingly “opt-in.”   In a free country, a person should be able to decline the “protections” that the government wants to impose, particularly on the person’s hard earned finances.

Your power of attorney can be disregarded: SB 429 eliminates protections that were put into Wisconsin’s financial power of attorney law. The bill allows a financial institution to disregard your durable power of attorney (DPOA) if they believe your agent is perpetrating financial abuse.  The ability of banks to refuse DPOAs is exactly what Wis. Stat. § 244.20 — the statutory prohibition on refusing a power of attorney —  was intended to remedy after a long history of financial institutions refusing to accept powers of attorney for inappropriate reasons, such as the fact that the documents was not on the bank’s preferred form or was more than 6 months old. § 244.20 was the product of hard work by elder law attorneys in Wisconsin and protects individuals against arbitrary refusal of a properly drafted power of attorney. Proposed § 224.46(4) does an end run around the protections of this section.

No Liability for Mistakes: Both bills relieve the financial institutions of any liability if they act in good faith and with reasonable care under these provisions. You may suffer considerable financial damage if the institution acts in error, but you have no recourse. Also, it is not clear who will be stuck with all the bounced check charges, later fees and other consequences that would come from an error in delaying a transaction. Worse yet, if the customer (or his or her agent)  is in the middle of applying for Medicaid, the application could be denied if funds are not distributed (“spent down”  in a timely fashion, costing tens of thousands of dollars.

I’m not blind to the issue of financial exploitation of vulnerable adults. In fact, I am very well acquainted with issues relating to elder abuse.  Years ago, as the director of a non-profit program serving elders, I obtained one of the first grants from the State of Wisconsin to provide legal services to victims of elder abuse. I have trained professionals on Wisconsin’s Elder Abuse laws, and have trained attorneys on how to represent victims of elder abuse. My firm represents victims of financial exploitation. These are terrible cases. However, two wrongs don’t make a right. Curtailing the rights of individuals to handle their own finances, making their carefully drafted powers of attorney worthless, and relieving financial institutions from all liability create problems that could be even worse.

Call to action: You have the power to let your Wisconsin legislator know that these bills cannot be passed the way they are currently written. With some improvements, they could provide a real benefit. As currently written, the potential to harm individuals who are competently going about their own business with their finances is too high. You need to act quickly, so call or write today. Contact information to find your legislator is here: https://legis.wisconsin.gov/ simply write your address in the space on the right side of the page underneath the heading “WHO ARE MY LEGISLATORS?”  

Posted in elder abuse, Elder Law, Financial exploitation | Tagged ,

When the nursing home tells you Medicare is ending, know your rights!

I have the good fortune of spending the better part of this week in Fort Worth, Texas at a conference of the National Academy of Elder Law Attorneys. It’s at these events where I learn new ideas, solidify my thinking on issues I already know, and make new friends. I also get great ideas for things to write about. Today, Attorney Eric Carlson from the National Senior Citizens’ Law Center was talking to us about nursing home residents’ rights. My mind wandered to all of the clients I have worked with over the years who have had concerns and issues regarding something a nursing home was – or was not – doing. The issues related to nursing home rights are many, and at some point a family might feel like they are desperately trying to hang onto a bucking bronco that they have never ridden before and didn’t want to be on in the first place. This article focuses in on one of those challenging situations – when the nursing home says that a patient’s Medicare will be ending.

The setting: Mom is already in a nursing home. She was admitted two weeks ago for rehabilitation, after a hospitalization due to a stroke. Currently, Medicare is covering the costs of her care. Awhile ago, before the stroke, I met with the family to talk generally about Medicaid, because Mom also is approaching the mid stages of dementia and was considering a move out of her home.

I get a call or email from one of the family members who was in the earlier meeting. “The nursing home just told us Mom’s Medicare is ending in three days and we need to make plans for her discharge. Where is she going to go?!?”

My first thought is “WHOA NELLY!” (Maybe it’s the Texas air influencing my choice of words here.) Because this family has just been thrown into the ring of uncertainty and panic thanks to what someone at the nursing home told them, and we need to get a handle on what is really going on.

Luckily most times, “Whoa Nelly” is not what comes out of my mouth. Usually there are questions. The questions are important because each one relates to rights the person has and that we need to discuss. Many of these rights are found in federal regulations. I’ll provide some links at the end.

1. “Did they give you something in writing?”

When a nursing home determines that a patient no longer qualifies for Medicare to pay for that patient’s care, the nursing home must provide written notice in advance. The written notice must include, among other things, a statement that Medicare will be ending, the date it will end, the reason it is ending, and an an explanation of the person’s right to appeal. So, if no written notice has been given, the process has not formally been started. The patient has the right to receive that notice. A decent nursing home will give it directly to the competent patient or to the responsible agent of an impaired patient, and will provide the family with a compassionate person to explain what it means. But sometimes it is just found in a patient’s drawer.

If no written notice has been given, it doesn’t mean the nursing home is not trying to move the patient out. It just means they have not started the proper legal process.

2. “What is the reason they are giving as to why Medicare will end?”

When a nursing home determines that a patient no longer qualifies from a medical perspective to have Medicare pay for the patient’s care, the facility must explain the reason. (This rule does not apply for non-medical reasons such as the fact that the patient’s allotted Medicare days for payment have run out.)

The circumstances under which Medicare will pay for nursing home care are extremely limited, which is why Medicare is not a payment source for long term care in a nursing home. One of the coverage rules is that the care being provided must be daily skilled nursing care or skilled rehabilitation that is medically necessary. If a person has improved (or declined) to the point that they no longer need skilled care, it is possible that Medicare coverage will end. At that point, the family will need to pay privately, qualify for Medicaid, access Long Term Care insurance, or access other forms of payment that may be available.

On the other hand, if a person still needs daily skilled care, Medicare payment should continue (provided there are coverage days still available.) Unfortunately, there is an issue that comes up time and time again in these cases.

Family member: ” The nursing home says Mom has plateaued. She is no longer making progress in her therapy.” This ought to be a great big red flag, like waving a flag in front of a rodeo bull!

The fact that someone is no longer making progress is not in and of itself a reason for Medicare to end, if that person still needs daily skilled care or rehab to keep from regressing (backsliding) on the progress that has been made, or if daily skilled care is required for other reasons. Yet, it is a major reason nursing homes use to end Medicare and move people out.

Nursing homes trying to end Medicare coverage inappropriately because a person had “plateaued” was such a common violation that a class action called the “Jimmo” case resulted in a strong set of communications and directives to nursing homes from the government. But it still happens more than it should. A link to a toolkit for families in this situation is included at the end of this article.

3. “Do you disagree with the nursing home?”

I always ask this question because sometimes people agree that their loved one no longer needs skilled care, but other times they feel the patient could benefit from continuing the care. When a patient disagrees with the decision, specific appeal rights exist in Medicare termination cases. The notice must include the details about how to exercise those rights and families must act fast to exercise them.

What the notice does not tell you is this: if you decide to pursue an appeal you must insist that the daily care be continued! Most nursing homes will encourage the family to stop rehabilitation or go down to two times a week. But if you believe Medicare should keep paying, you cannot reduce the amount of care because Medicare only pays if daily care is given! ( Or at least 5 days a week in rehabilitation cases.) So it is a bit of a risk, since if the appeal is unsuccessful, the patient will have a higher bill to pay for the daily care. But if the appeal is successful, and it turns out the patient reduced the amount of care while the appeal was pending, the patient will probably end up paying even though he or she won the appeal.

4. “Do you need more time -or- do you want to stay in the facility?”

If the answer is “Yes” even in those cases where the family does not dispute the decision to end Medicare, I explain that the fact that Medicare is ending does not mean the person has to leave! The reasons that a nursing home can force a resident to leave are extremely limited and do not include simply the fact that Medicare is ending.

If a nursing home wants a patient out it must give a specific written notice of planned discharge that is different from the Medicare notice. The process of evicting a patient requires the nursing home to allow the tenant 30 days to move, except in very limited cases where less time can be given. The nursing home must also provide services to the patient to assist in planning for the discharge, and may not discharge that patient if there is not a safe place for the patient to go.

So, patients have options when Medicare ends. They can:

  • Dispute the written notice of Medicare termination;
  • Decide to move out if a safe place is available;
  • Stay in the facility and continue to pay privately;
  • Stay in the facility and  access other payment sources, or seek Medicaid coverage if the facility participates.
  • If they simply need more time but do plan to move, they can wait for written discharge notice and discuss discharge planning options.

During this time the patient may be liable for the cost of care if Medicare was properly terminated and no other coverage is available. But no family or client should feel pressure to move when they are not ready, or just because a nursing home staff told them verbally that Mom needed to move.

Each case is different, so in cases like this, patient’s need to be educated, get good advice and strong legal representation if it becomes necessary.

A good explanation of nursing home residents rights is here.

A toolkit that explains the Jimmo case and helps people advocate in those cases is here.

Posted in Elder Law | Tagged , ,

Every Married Couple Needs to Understand what a “Snapshot” is and Why it Matters in Medicaid Planning

In Medicaid world, when I say “we need to get a snapshot,” I sometimes think my clients wonder where the camera is. Then, when we are done talking about this particular issue, I think we both feel as though it would be easier if we were talking about a Polaroid.  The Medicaid snapshot is a very important concept for married couples, and it’s also very confusing.  This article is to help you make sense out of it. At the end, you will see why it is very important to understand how important the snapshot date can be for your financial 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. But they are called “spousal impoverishment.”

The spouse applying for benefits is called the “institutionalized spouse” – whether in a nursing home or applying for Family Care.  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” and I usually use that term when we are discussing Medicaid benefits in a nursing home.

Side Question: Why would a spouse applying for Family Care be called an “institutionalized spouse” when the whole point of Family Care is to keep people out of institutions by providing care and services in their homes? Answer: Because that’s just the way it is in order to apply the same rules.  Don’t try to find logic in it.

Assets: Under spousal impoverishment rules, the allowable amount of assets that the couple can have to qualify for Medicaid is called the “community spouse resource allowance” or CSRA. The CSRA is going to be a specific number. As of the posting date for this article, that number will in most cases be somewhere between $50,000 and $126,420, plus $2000 for the nursing home spouse. (In exceptional cases there can be adjustments through a hearing process.) The upper number changes every year. The trick is understanding how Medicaid comes up with the exact number that applies to the couple. And this is where the “snapshot” concept comes in.

Income: There are also rules related to spousal impoverishment 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.  But today we aren’t here to talk income. Because the snapshot is all about assets.

Now getting to the point – explaining the “snapshot”

In a nutshell, the “snapshot” is the amount of assets the couple had as of a particular date in time prior to the time they applied for Medicaid. That date is called the “snapshot date.”

Snapshot date:  The snapshot date is a specific date in time that is very important, but that most couples – at least those who have not read this article – have no idea is so important. In Medicaid legalese its official name is the “first continuous period of institutionalization.” You can see why we would rather call it the snapshot date. Figuring out what date is actually the snapshot date is done two different ways – depending on whether the person is applying for institutional Medicaid or Family Care.

Institutional Medicaid Snapshot Date: For institutional Medicaid (nursing home or hospital) cases, the snapshot date 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 example, if Georgio had a stroke on March 1, 2019 and went into the hospital that day, stayed there for a week, and then went directly into a nursing home for several months, the snapshot date would be March 1, 2019. The key is that there needs to be a “continuous” period of institutionalization. If Georgio went home after his week in the hospital, stayed at home. then went into the nursing home on March 11th (a couple days after going home,) the snapshot date would be March 11th – assuming he did spend 30 days or more in the nursing home.

It’s also important that the snapshot date is the first continuous period of institutionalization so if Georgio had been in a nursing home for some reason two years before his stroke, from August 10, 2017 -September 25, 2017, then the snapshot date would be August 10, 2017, even if no Medicaid application was done at that time. For people whose first continuous period of institutionalization is several years in the past, it can be difficult to recreate financial records.

So remember, for institutional Medicaid the snapshot date is the:

    • FIRST – must be the first time person was in the hospital/nursing home for 30 days or longer
    • CONTINUOUS – must not have a gap such as a return home
    • PERIOD OF INSTITUTIONALIZATION – this means 30 days. Whether in a hospital, a nursing home, or a combination.

Family Care Snapshot Date: For Family Care,  the snapshot date has nothing to do with a stay in a nursing home! It is the date that a functional screen result concludes they met the “functional” requirements for Family Care. The functional screen results come on a paper that is dated. The date on that paper is the snapshot date.

In Family Care cases, many couples do not understand how the functional screen affects their financial future because it sets the snapshot date. This is something families need to get educated about. This screen is typically performed by someone from a local county’s Aging and Disability Resource Center (ADRC). Because this article is focused on the snapshot date, I will not explain this test in a whole lot of detail right now, except to say it is a complicated but necessary part of the Family Care application process. I typically spend part of an initial appointment with clients explaining it. What I do want to stress in this article is that the timing of that functional screen is more important than most people realize.

To make it a little more confusing, whichever of these two situations took place first can be used as a snapshot date. In other words, if a person in a nursing home for the first time had a functional screen a couple years ago, that date will be the snapshot date. If a person requesting Family Care was in a nursing home for 30 or more days, the date of that nursing home admission will be the snapshot date.

The Snapshot:  The snapshot is the amount of countable assets the couple had on the snapshot date. (Oh now we are getting to the point!) Remember in the section a few paragraphs ago when I explained spousal impoverishment assets? Well, figuring out how much the couple gets to keep is based on the snapshot.  For the snapshot, we add up everything the couple owned – on the snapshot date – that would be a countable asset for Medicaid. This includes: bank accounts, stocks, bonds, vehicles – except one, real estate that is not the home, cash value life insurance with a small exception, and most other liquid assets. 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 in most cases. A few other things are not counted also, such as retirement funds that belong to the community spouse. An elder law attorney can help you understand more about what assets are and aren’t counted.

Once all of those countable assets are added up to make the snapshot, the spousal impoverishment formula says you get to keep half of those assets – but must not go higher than the highest number in the asset range (currently $126,420.)

Examples: 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 asset 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 in that case the target for the couple is $50,000.  Similarly, due to the maximum, if a couple has $500,000 on the snapshot date, their target level will be $126,420 even though that is far less than half. In all of the above cases, the institutionalized spouse also gets to keep another $2000.

This leads to the phrase I repeat to my clients until they “get it”: Half of more is more, half of less is less. The more you have on the snapshot date, the more you get to keep!

Helpful tips: All of this boils down to the fact that you need to understand why the snapshot matters. Now that you know what the snapshot is, you can do a few things. Of course, the amount of control you have depends quite a bit on whether you can control the snapshot date. In some cases, such as a stroke or other emergency hospitalization that leads to a long period of care, you have no control.

  • Keep records when a loved one goes into a hospital or nursing home. Preserve records regarding the date the person went into the hospital or nursing home, and if it turns out the stay in hospital / nursing home is more than 30 days, make a folder with all of the person’s assets on the snapshot date. Bank and brokerage statements, insurance statements, stock records, vehicle description / blue book value, etc. Keep that folder as long as the spouse is alive.
  • If you believe your spouse will need long term care, for example if your spouse has recently been diagnosed with dementia, make sure you see an elder law attorney before you are too far down the road so that you learn what you can do – if anything – to maximize your snapshot.
  • If your assets are between $100,000 – $253,000, understand you are in the zone where the more you spend before a snapshot date, the lower your snapshot will be. It is particularly important that you be strategic about your situation if you have any control over it.
  • If you are considering Family Care,  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 $253,000. Couples in that target range will want to make sure they do not spend money on discretionary big-ticket items before getting the screen.
  • 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.
  • If a nursing home social worker or billing person, or a government employee tells you “you need to spend down to $50,000 and then you can get Medicaid,” do not immediately believe that statement. See my article here.


Posted in Elder Law, Medicaid, spousal impoverishment

What a will…won’t.

This article is about the basic misunderstanding most people have about wills. Here is how my average meeting starts when people schedule an appointment to talk about a will:

Me: I understand that you would like to talk about your estate planning.

Client: Yes, I need a will.

Me: I can definitely help you with that. Can you tell me what you want the will to do for you?

Client: Well, when I die I want to divide my estate among my children and I don’t want a probate. So I want a will to say where things should go.

Me: Ahhh, I understand.

Now it is time for me to become the Legal Mythbuster.

Me (again): We need to talk about what a will WON’T do. A will WON’T avoid probate.

Client: WHAT??????

Surprising as it is, this is the truth of the matter. A will is a document that contains a number of directions for how things are to unfold with your estate after you die. It includes your choice of person who will have legal authority to manage the affairs of your estate (“executor” or “personal representative.”) It includes any special provisions you have for certain types of beneficiaries, such as children. And ultimately, it says who gets what. However, none of those instructions are legally effective until the will is admitted for probate in a court of law. And the only way to admit the will in court is to open a probate case. That’s just the way it works.

Another related issue that people don’t understand is that the will only controls property that has to go through probate. Many things don’t go through probate. Let’s say that a person wants their assets divided between their four children equally. But during the course of their life, they added one child as a joint account holder on a checking account, and named another child as a beneficiary of a life insurance policy. They also have an IRA that names all four children. None of these assets actually goes through probate at the death of the person, so the will is meaningless with respect to those assets. Regardless of what the will says, the joint account will go to the child who is the remaining joint account holder. The life insurance will go to the one child who is named. And the IRA will be divided between all four children without a probate.

I think it is often a good thing when a client has assets that are all set up to pass to named beneficiaries without probate. That saves a lot of money. This can be done with beneficiary designations, joint accounts, or a trust arrangement.  The best plan is based on a person’s particular circumstances so it is something to discuss with an attorney. The key is to make sure that the non-probate plan is consistent with the way the client wants things divided at death.

In some cases, it is important that assets DO go through probate. When one spouse is on Medicaid, it is important for the other spouse to have an estate plan that involves a “testamentary” trust which can only be set up through probate.

Even with a good non-probate plan, it still makes sense to have a will. For example, we may assist a client in putting together a comprehensive “living trust” arrangement, which involves making sure all of the client’s assets are properly connected to the trust so that they will pass without probate when the client dies. But we still do a will.  Why? Because even the best planning cannot anticipate everything.  What if the reason the client dies is due to a terrible car accident that was not the person’s fault? Then there may be a legal cause of action against the individual who caused the accident. But since the client is deceased, we need to open a probate so there is a person with legal authority to pursue the claim, and since the proceeds of the claim were not in the client’s estate when he or she died, we need the will to transfer them in the manner that the client would have wanted.  So the will is necessary even though all other assets were set up to pass without probate.

This does not mean a will is not a good estate planning tool. It is good as long as you understand what it will and won’t do. If you want more information about that, and about the other options that exist, ask a good attorney.




Posted in Elder Law | Tagged , , ,

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:  Steve.Hall@legis.wisconsin.gov . 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 http://www.naela.org and using the Find a Lawyer feature.




Posted in Elder Law