Saturday, February 2, 2008

Estate Recovery Law More Agressive Than Ever

Estate Recovery Law More Aggressive Than Ever

Your mother is in a nursing home and has qualified for Medicaid. She’s been able to keep her home because it is an exempt asset so long as she is living and “intends to return home.” But what happens to the house after she dies? What if it was your spouse on Medicaid and the state has paid thousands in benefits? Will they attempt to recover benefits upon your spouse’s death?

After a Medicaid recipient dies, the state has the right to recover any assets remaining in order to reimburse itself for Medicaid benefits paid out. This process is called estate recovery.

Certainly, it makes sense from a public policy standpoint----if the state is going to help pay for a resident’s care while they are living, then the state should be reimbursed, as fully as possible, by any assets remaining at the resident’s death. But while this policy may make sense, families are never happy to learn that the state may try and take your/your parent’s home after your spouse/parent dies.

At one time, my state of Texas for instance, was only pursuing certain real and personal property the Medicaid recipient had titled in their name, alone. But now, Texas is taking advantage of the Federal law’s expanded definition of “estate” that allows the state to recover most assets in which the Medicaid recipient has an ownership interest.

Fortunately, the state Medicaid Estate Recovery Program (MERP) does not have the authority to put a lien on property, but may file a claim in probate.

There are still, in certain circumstances, perfectly legal ways of avoiding estate recovery. For example, if mom is the Medicaid recipient, and she has a child with a qualifying disability, she may be able to give her home to that child penalty free and avoid estate recovery at her death.

Also, if mom had an unmarried child who moved into her home with her, cared for her for at least one year, then mom can transfer her home to that child, penalty free, and avoid estate recovery. This is called the caretaker/child exception.

There may also be other strategies to consider for avoiding estate recovery including purchase of the home by family members or, perhaps, even using a reverse mortgage.

Medicaid estate recovery rules are complicated. I MUST CAUTION YOU THAT THE RULES VARY SIGNIFICANTLY FROM STATE TO STATE. The examples I used here pertain to Texas, but your state may be more or less strict.

You should consult an Elder Law Attorney who practices in the area of Medicaid before drafting your estate plan with the intent of qualifying for Medicaid, with the hopes of avoiding estate recovery.

For more information, please visit us online at:

Or for more information on Alzheimer's, please visit the Alzheimer's Legal Resource Center at:

Wednesday, January 30, 2008

Deficit Reduction Act Creates Problems for Alzheimer's Patients

I'm still dumbfounded that Congress determined it was necessary to take away much of the Medicaid Planning that was available to the public. What is Medicaid you ask?

Well, it's complicated.This is a federal and state funded and state administered medical benefit program which can pay for the cost of the nursing home if certain asset and income tests are met.

There are basically four ways to pay for nursing home care:

1. Private Pay. This is the method many people are required to use at first. Quite simply, it means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills averaging between $4,000 and $4,500 per month in our area, few people can afford a long term stay in a nursing home.

2. Long Term Care Insurance. If you are fortunate enough to have this type of coverage, it may go a long way toward paying the cost of the nursing home. Unfortunately, long term care insurance has only started to become popular in the last few years and most people facing a nursing home stay do not have this coverageThe first two methods of private pay (i.e. using your own funds) and long term care insurance are self-explanatory, our discussion will concentrate on Medicare and Medicaid.

3. Medicare - This is the national health insurance program primarily for people 65 years of age and older, certain younger disabled people, and people with kidney failure. Medicare provides short term assistance with nursing home costs, but only if you meet the strict qualification rules.

4. Medicaid - This is a federal and state funded and state administered medical benefit program which can pay for the cost of the nursing home if certain asset and income tests are met. Since the first two methods of private pay (i.e. using your own funds) and long term care insurance are self-explanatory, our discussion will concentrate on Medicare and Medicaid.

Medicaid has traditionally been the way many people paid for long term stays in skilled nursing facilities. For instance, if a loved on is facing a nursing home stay due to an illness such as Alzheimer's, Medicaid may pay for these costs.

But the rules are much tougher now than they have ever been, due to changes in the law that occurred in 2006 under the Deficit Reduction Act (DRA). The main thing to note is that there are many ways to still qualify for Medicaid paid nursing home care, and many planning techniques that may still be avaialbe, even under these tough new laws.

But you need a qualified Elder Law Attorney to help you navigate through the ever rising riptides...More on this later.

For more information on Alzheimer's, visit the Alzheimer's Legal Resource Center at or contact us a

Tuesday, January 29, 2008

Use of Personal Care Contracts for the Alzheimer's Patient

Personal Care Contracts

Millions of Americans are currently caring for an elderly family member or friend, without receiving compensation. Depending on the circumstances, however, it may actually be beneficial for both parties to enter into a care contract wherein the caregiver accepts payment for the care they are providing their loved one and also formally assumes responsibility for that care.

If the loved one you are caring for reaches a point where nursing home placement is the only option, all of their money will be considered available to pay for their care at the nursing home and they will not be eligible for Medicaid assistance until all of their assets have been depleted. Certainly the care they were provided by you, while they remained in the community, is just as valuable to them and worthy of payment as that they will be provided in the nursing home. With a care contract in place, they can pay their caregiver, and every penny spent will count towards their “Medicaid spend down” should they apply for benefits.

It is important to note that without a proper contract in place, Medicaid will assume the money paid is a “gift” or a “transfer of assets” and will impose penalties resulting in ineligibility for Medicaid benefits.

While most of you may already be aware that Medicaid allows care contract payments for caring for loved ones living at home, you may not be aware that payments made via personal care contracts for providing care services for nursing home residents are also an allowable spend down.

Let's give an example: Imagine that daughter agrees to perform a number of services for her mother, including but not limited to preparing meals, cleaning, laundry, assistance with grooming, bathing, personal shopping; monitoring her mother’s physical and mental conditional and nutritional needs in cooperation with health care providers; arranging for transporting; visiting weekly and encouraging social interaction; interacting with and/or assisting in interacting with health care professionals, etc. for her mother’s lifetime, in exchange for a lump sum of $30,000 via a care contract.

Now, whether this will be allowed will be dependent upon the state determining that the Contract in place had fair and valuable consideration. While a personal care contract may not be appropriate in everyone’s situation, if you are caring for your loved one at home or in a nursing home, it is something that you may want to discuss with a knowledgeable Elder Law Attorney who can advise on possible tax consequences and/or Medicaid and estate planning issues.

For more information visit us online at or visit the Alzheimer's Legal Resource Center at:

Helping An Alzheimer’s Patient Eat

As Alzheimer’s progresses, simple, day-to-day functions become increasingly difficult and mealtimes could present significant challenges for your loved one. They may experience a loss of appetite or interest in food or could forget that they have already eaten. If you notice that your loved one is having difficulty maintaining a healthy, regular diet, there are several things you can do to encourage independence and make mealtimes easier.

Begin by setting up a regular mealtime and sticking to it so that your loved one always knows when he or she will be eating. They will be less likely to overeat or forget that they’re supposed to be eating if they’re used to a schedule. You man need to begin preparing each meal for your loved one as it may be unsafe for them to use a stove or dangerous kitchen utensils. Limit distractions during mealtimes and keep the table settings simple so that your loved one can focus on their food and eating rather than the television, a table setting or the telephone.

Keep in mind that your loved ones food preferences may change and be prepared to adapt to their new tastes. Avoid choking hazards, such as raw vegetables, popcorn, and nuts, and educate yourself on how to perform the Heimlich maneuver and CPR in case there is an accident. Alzheimer’s patients can become overwhelmed and confused easily, so serve one food at a time, rather than an entire plateful, so they can concentrate on eating. Encourage your loved one to take his or her time chewing and swallow carefully and check the temperature of their food to be sure it’s neither too hot or too cold, as they may no longer be able to distinguish the difference.

Though there may come a point when your loved one is unable to feed themselves, it’s important to encourage independence and allow them to eat as much on their own. Offer finger foods, such as chicken fingers, cheese cubes, cherry tomatoes and cheese slices, if they’re having difficulty using utensils and don’t worry about neatness. If your loved one has a habit of pushing his or her plate or glass around the table, invest in spill proof cups and plates with suction cups so they are easier to manage. Demonstrate how they should be using their utensils and remind them how to chew so that they are less likely to choke. Most importantly, make a point to eat every meal together so that you not only get to spend quality time with one another, but so you can keep a watchful eye and make sure they’re actually eating their food and doing so in a safe way.

Brian Willie is an Elder Law Attorney in California and Texas, and is a frequent author and speaker on the topic. He is the founder of the Alzheimer’s Legal Resource Center. For more information visit:

Monday, January 28, 2008

Caring For An Aggressive Alzheimer’s Patient

As your loved ones Alzheimer’s progresses, you may notice that they become more aggressive and tend to shout and become physical with you and your family members. Seen more often in men with Alzheimer’s than women, this behavior often occurs suddenly, with little warning and no apparent reason. Because it is probably difficult to understand where your loved one is coming from, it’s easy to become frustrated, but patience and understanding is necessary to calm him or her down and find out why they are so upset.

Aggression can be caused by several factors including physical discomfort, poor communication or an uncomfortable environment. When your loved one becomes aggressive, try to get to the source of their anger to see if you can make them more comfortable and less upset. Are they tired because they haven’t been sleeping well? Are the medications they’re taking causing side effects that make them angry or ill? Does it seem like they’re experiencing physical discomfort and pain?

Take note of environmental factors that could be making your loved one uncomfortable. Are there a lot of loud noises or people in the room? Do they look lost or confused? These feelings are enough to make anyone annoyed, but for a person with Alzheimer’s it can be particularly overwhelming and cause an angry outburst. They may also be frustrated because of their lack of ability to communicate with you. Keep your instructions simple and don’t ask too many questions or state too many things at once. Are you acting negatively to towards them or are you irritable yourself? Your loved one may be picking up on your own aggression.

The best way to respond to the aggression of a person with Alzheimer’s is to remain calm, patient and understanding. Try to identify the cause and focus on their feelings, not the facts. They may not be able to distinguish between wrong and right and may be confused about what really happened. Don’t take their behavior personally and try to remain positive and reassuring. Suggest a different, relaxing activity and limit their distractions so they can concentrate on remaining calm.

During an aggressive outburst, it’s important to assess the situation and the danger involved, both for your loved one and yourself. If he or she is acting out physically, stand back and call for assistance. If they’re trying to run away, be more assertive and make sure they remain in the house. Unless absolutely necessary, avoid using force or restraint because your loved one may become more upset and physical. The anger does not normally last very long and will only be escalated by equally aggressive behavior.

Brian Willie is an Elder Law Attorney in California and Texas, and is a frequent author and speaker on the topic. He is the founder of the Alzheimer’s Legal Resource Center. For more information visit:

Saturday, January 26, 2008

Communicating With An Alzheimer's Patient

As Alzheimer’s progresses, it diminishes a person’s ability to communicate with others and makes it difficult for caregivers to fully understand a loved ones needs. Alzheimer’s patients not only have a difficult time speaking and expressing their thoughts, feelings and emotions, but also have trouble understanding others and tend to confuse words and general conversation. Learning to communicate with a loved one who has Alzheimer’s is essential because it helps to understand their daily needs.

There are several changes that take place in the communication of a person with Alzheimer’s and you may notice that your loved one has difficulty finding the right words, uses words they’re familiar with over and over and invents words that don’t exist to describe familiar objects. They may easily lose their train of thought, have difficulty organizing words in a sentence and begin speaking in their native language.

When they sense they’re not properly communicating, people with Alzheimer’s tend to become agitated and use curse words and stop speaking all together. Instead of relying on their words, they might begin using gestures and pointing to convey their message. Though the process can be frustrating, for both the Alzheimer’s patient and caregiver, it’s important to familiarize with your loved ones gestures and invented words so they’re able to communicate more efficiently.

Make sure your loved one always knows that you’re listening and trying to understand what they’re saying. Be patient and make eye contact, allowing them to finish what they’re trying to say without prodding, corrections or criticism. If your loved one is having difficulty finding the right word, help them by guessing which word they’re referring to and if you cannot guess, ask them to make a gesture or point to something that relates to what they’re trying to say.

Patience is the key to communicating with a loved one suffering from Alzheimer’s and if you focus on their feelings, rather than the facts, you may have a deeper understanding of what they’re really trying to say. Talking slowly, using short sentences and repeating information can help them to process information easier with less confusion and frustration.

Brian Willie is an Elder Law Attorney in California and Texas, and is a frequent author and speaker on the topic. He is the founder of the Alzheimer’s Legal Resource Center. For more information visit: