Mistakes Retirees Make—Powers of Attorney

Written By: Attorney Jeffrey A. Marshall, CELA*

Pennsylvania retirees often make legal and estate planning mistakes. These mistakes can impact the retirees’ financial security and prevent them from achieving important goals.  This is the first in a series of articles that will discuss some of the most common mistakes.  First up: Financial Power of Attorney. 

For many of us there is no legal document that will someday become as important in our lives as a power of attorney. In the event of our incapacity, a power of attorney can help ensure that appropriate decisions will be made for us by the people we have chosen. A well-drafted power of attorney will increase the likelihood that our financial security will be protected and our intentions followed if we are ever unable to handle our own affairs. 

A power of attorney document can be the key that opens the door to protecting a family’s assets and financial security from the cost of long term care.   A recent Government study estimates that a majority of people who reach age 65 will someday need long term care.  40 percent will spend time in a nursing home where 10 percent will remain for five years or more. So, it’s no surprise that many of my clients want to protect their homes and savings from the cost of that care.

A power of attorney can help by allowing your family to act on your behalf in the event of your illness. However, the document must be carefully crafted to include special provisions to authorize asset protection planning. Not just any power of attorney will do. The absence of needed provisions in a power of attorney can seriously jeopardize your family’s financial security. 

On the other hand, in the wrong hands, a power of attorney can become an instrument of financial abuse and exploitation.  This is not a document to sign without expert advice and assistance.

Here are some things to consider addressing in your power of attorney. 

Name a Successor Agent. 

Just as you may someday be unable to make financial decisions, there is a real chance that your designated agent may someday become incapacitated, die, or be otherwise unavailable to serve. A power of attorney should anticipate this possibility by naming a back-up agent.

Address Gifting.

Qualifying for Medicaid and other government benefit programs can help you preserve your assets from the cost of long-term care. But your agent may need to transfer your assets (to your spouse or others) in order to meet program financial eligibility requirements.

Under Pennsylvania law, if you lack the capacity to make a needed transfer, your agent must have explicit authority to make gifts on your behalf. This authorization can be granted in the power of attorney.  But, if your power of attorney does not address the issue, your agent will not have the power to make gifts.  

Giving away assets may be a critical step in protecting those assets for your spouse or other family members. But divestment is a radical option and you want to be sure that the quality of your care never suffers as a result. Gifting powers should be finely tailored to achieve your objectives while preventing actions by your agent that would be in contravention of your goals.

Avoid Abuse

How can you help ensure that your power of attorney will never be used to take advantage of you? If you do authorize your agent to make gifts on your behalf, you will want to consider the need to protect yourself from inappropriate use of this power. You can build in protections against abuse of gifting powers by:

(a)        requiring that all gifts be approved by persons other than the agent;

(b)       limiting the persons to whom gifts can be made (for example, allowing gifts to be made only to your spouse);

(c)        requiring equality in the treatment of family members;

(d)       requiring the agent report any gifts to other family members;

(e)        naming more than one person as co-agents;

(f)        requiring that gifts be made to a restricted asset protection trust. 

Be Specific and Comprehensive. 

Language giving broad general authority to your agent is helpful, but may not be sufficient to authorize specific actions. An insurance company or broker may want to see detailed language which unambiguously authorizes a contemplated action. As a result you should enumerate in detail any powers that you think your agent may need. 

Consider the Effective Date. 

Should your agent be authorized to step in when the agent feels the time is right?  Or do you want your agent’s authority to begin only after you have been determined to be unable to handle your finances?

A “Springing Power of Attorney” is not immediately effective.  It becomes effective only if certain events occur at a future time. That is, it "springs up" only upon the happening of a specific event such as your incapacity. A Springing Power of Attorney typically provides that your agent cannot act until after a physician has determined that you are not competent to handle your affairs. 

A springing provision in a power of attorney can make life more difficult for your agent, but it may be an appropriate protection for you.  Discuss this issue with your lawyer.

Consider Health Care Decisions.  Do you want the person named as your financial agent to make medical decisions for you?  It is a good idea to designate the person you want to authorize to make health care decisions for you.  This may or may not be the same person you want to name to handle financial matters.  If your choice for health care is someone other than your designated agent for financial matters, it is best to have two separate documents. 

Choose the Right Agent. Above all, make certain the person you name as your agent is someone with the time, ability, and honesty to act on your behalf. A power of attorney is an invaluable legal tool. Be sure to take your time when you have one prepared and make sure that your document will protect you.

Attorney Marshall can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Attorney Marshall is available on our website at www.paelderlaw.com/staff.html  

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 Quality Rating System for Nursing Homes Released

Written By: Attorney Jeffrey A. Marshall, CELA*

The federal government has released quality ratings for each of the nation’s 15,800 nursing homes that participate in Medicare or Medicaid.  Facilities are assigned star ratings from a low of one star to a high of five stars based on health inspection surveys, staffing information, and quality of care measures. The ratings are publicly available on the government’s Nursing Home Compare Website.

According to the New York Times, about 22 percent of the nation's nearly 16,000 nursing homes received the federal government's lowest rating in the new five-star system unveiled Thursday, while 12 percent received the highest ranking possible.

Facilities in the Northcentral and Northeastern Pennsylvania area received a range of ratings from 1 star to 5 stars.  According to USA Today, non-profit nursing homes as a whole score better than for-profit homes, which tend to have fewer staff members per patient. In addition, nursing homes associated with hospitals tend to do better than those that are not.

The ratings system has drawn criticism from the nursing home industry.  Bruce Yarwood, President of the American Health Care Association argues in a USA Today opinion piece that the rating system is “based on the broken survey system, lacks the inclusion of other important quality elements that help consumers make informed decisions, and includes inaccurate data.” 

The National Association of State Long-Term Care Ombudsman Programs issued a statement commending the ratings system while urging consumers not to use it to oversimplify nursing home selection. 

“In reviewing the Five-Star rating for a particular nursing home, consumers should compare the rating with their own experience during a personal visit to the home. For example, staffing data that is used for the rating system is based on the two weeks prior to the nursing home’s annual regulatory survey, an insufficient period of time to represent the usual staffing pattern of the home. Consumers should visit the home and review staffing data that is required to be posted for every shift, every day. Consumers should weigh this data against their own observations. For example, do residents look clean and well groomed, are call lights answered in a timely manner, do staff address one another and residents with respect? These observations will give families a picture of what life is like in the home.” 

Download a copy of Marshall, Parker & Associates’

Pennsylvania Nursing Home Guide on our website at http://www.paelderlaw.com/pdf/NH_Guide.pdf

Attorney Marshall can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Attorney Marshall is available on our website at www.paelderlaw.com/staff.html  

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Modified Aging Waiver Receives Approval

Written By: Attorney Jeffrey A. Marshall, CELA*

A significant portion of Pennsylvania’s annual budget goes to help pay for nursing home care. The state uses federal Medicaid funds to help it meet its obligation to eligible individuals who need this level of care.  

But, few people want to live in a nursing facility.  Most of us would prefer to remain in our home if that is realistically possible.  Pennsylvania has developed a number of programs that recognize this preference and offer people home care alternatives to nursing facilities. 

While family supported home care is often much less expensive than institutional care, Pennsylvania still needs federal Medicaid money to fund these home care options.  To obtain federal financial assistance to provide supports and services for people in their own homes, Pennsylvania must seek “waivers” from standard Medicaid rules.  This federal approval allows the state to use Medicaid money for home care.

Pennsylvania has established many Medicaid waiver programs.  A listing of them is available on the Department of Public Welfare’s website at: http://www.dpw.state.pa.us/ServicesPrograms/MedicalAssistance/003670306.htm

The waiver program that is most important for seniors is the “Aging Waiver.”  Seniors who would otherwise need nursing home care, but who can have their needs met at home can obtain a wide variety of government financed care support.  Consumers should contact their local Area Agency on Aging for more information. 

To qualify for Aging Waiver services (which are provided at no cost), the applicant must meet Medicaid’s stringent financial and functional need requirements.  Elder law attorneys like Marshall, Parker & Associates show their clients how to use legal planning techniques to help them qualify. 

The eligibility requirements for the Aging Waiver are actually somewhat more restrictive than for Medicaid funded nursing facility care. In addition to meeting all of the Medicaid financial and non-financial rules for nursing facility care, the Aging Waiver recipient must also have income below 300% of the federal poverty standard ($2,022 per month in 2009). The Aging Waiver program imposes the same level of care requirements as for nursing facility services. In order to qualify for PDA waiver benefits, an applicant must be determined to require the level of care of a nursing facility. 

The Pennsylvania Department of Aging, which formerly administered the Aging Waiver, no longer oversees its operation. That function has been taken over by the Office of Long Term Living (OLTL).  Aging Waiver enrollment and level of care determinations will continue to take place through the local Area Agencies on Aging (AAAs) but with direct oversight by OLTL. Services are provided through qualified providers that are enrolled as Medical Assistance providers.

Federal law gives individuals who are denied Aging Waiver services (or their provider of choice) the right to request a Fair Hearing under 42 CFR §431 Subpart E. The same hearing rights apply if a Waiver recipient’s services are suspended or reduced or terminated.

The federal government’s approval of Pennsylvania’s Aging Waiver is limited in time.  Each five years Pennsylvania must seek federal approval to renew this waiver.  Pennsylvania’s previous approval expired on June 30, 2008 and it filed an application for another five year renewal. This application was initially denied but federal approval has now been received. 

A copy of the approved Aging Waiver is available on the Marshall, Parker & Associates website at http://www.paelderlaw.com/pdf/Aging_Waiver_Renewal.pdf.  The renewed Aging Waiver includes a number of significant changes from the prior program.  Among the many changes being made to the program: 

-Implementation of a comprehensive Quality Management strategy that requires more effective monitoring of local agency operations;

-Refinement of waiver service definitions and development of a standard statewide rate-setting process, including the addition of case management as an Aging Waiver Service;

-Design of a new "Services My Way" Pilot (Cash and Counseling model);

-Examination of the process used for Level of Care (LOC) determinations to maximize statewide consistency and appropriateness;

-Consideration of policies that would allow for Payment to Spouses as Personal Assistance Service Workers, and

-Implementation of “TeleCare” which involves phone and electronic health status measuring and monitoring services, medication dispensing and safety monitoring.

Attorney Marshall can be contacted at webmail@paelderlaw.com or at 1-800-401-4552. More information about Attorney Marshall is available on our website at www.paelderlaw.com/staff.html   

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Marshall, Parker & Associates in National Spotlight

This article originally appeared in the December 2008 edition of Menus & Merchants Magazine

When Certified Elder Law Attorney Jeff Marshall graduated from Stanford Law School in 1972, he never imagined that a few decades later he would be known as the “Father of Elder Law in Pennsylvania.” At that time, the term “elder law” didn’t even exist.  It wasn’t until 1979 when his mother passed away after a long battle with Cancer that Marshall realized how much expert guidance and planning is needed for families struggling through a loved one’s long-term illness.

“When my mother got sick, my family didn’t know what to do” said Marshall. “I was a highly educated lawyer, and my family turned to me for guidance, but I didn’t have any answers for them. This wasn’t something they taught us in law school.”

When he returned to Pennsylvania in 1980, Attorney Marshall, a native of Lock Haven, opened a law office in Lycoming County.  He worked hard to learn all he could about the legal, financial, and health care problems facing seniors.  Over time he developed planning techniques and options that his clients could use to protect themselves and their families. 

Word quickly spread that there was a lawyer who could help families faced with devastating nursing home costs.  People from all over Northcentral Pennsylvania sought his advice.  Soon Marshall realized he needed to limit his practice to the fields of elder law, estate planning and estate administration.  “The government programs and laws facing seniors are so complicated and change so quickly that I had to specialize,” Marshall said. “That is the only way I could provide my clients with the best legal advice.” 

Now, more than 25 years later, the law Firm of Marshall, Parker & Associates has become nationally recognized as experts on elder law and estate planning issues. In 2007, Marshall was awarded the “Excellence in Elder Law” award by the statewide lawyer’s organization, the Pennsylvania Bar Association.  His office reception area is filled with plaques and awards: Best Lawyers in America, Super Lawyer in Elder Law, one of top 100 Lawyers in Pennsylvania in any legal field.  His book, Elder Law in Pennsylvania, received the 2006 ACLEA award for excellence, an international honor.

Marshall’s law firm has expanded over the years to now include five lawyers in four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton.

Matthew Parker is another of the firm’s Certified Elder Law Attorneys.  Like Attorney Marshall, he too has seen a long term illness affect his family. His grandfather, a life-long resident of New England, was diagnosed with Parkinson’s Disease when Attorney Parker was young.  “I remember the visits to Massachusetts.  My grandfather always had a sense of humor.  He enjoyed playing cards and rooting for the Red Sox,” he said.  “But as his illness progressed, he lost the ability to enjoy those interests.  I saw what Parkinson’s did to him physically and financially,” Parker said.  “If my family had an opportunity to work with an experienced elder law attorney, they could have protected my grandfather’s home from the costs of nursing home care.”

After graduating from Dickinson Law School in 1995, Parker decided to focus on helping people like his grandfather.  He eventually became a principal of the firm of Marshall, Parker & Associates. He has gained wide recognition as an advocate for seniors.  In November 2008 Attorney Parker won a nationally important decision from The Federal Third Circuit Court of Appeals in the case James v. Richman, which establishes vital financial protections for those seniors whose husband or wife needs nursing home care.   

Lycoming College graduate, Attorney Tammy Weber, never expected elder law and estate planning to be the primary focus of her legal career.  A Muncy native, Attorney Weber worked as an Assistant US Attorney in Philadelphia until 1997. She won numerous prestigious awards for her work in major investigations and prosecutions, but it wasn’t until she returned to Montoursville in 2001 and helped an ailing family member through the entire long term care process that she realized that elder law was what she wanted to do.  “I prosecuted many Medicare and Medicaid fraud cases while at the US Attorney’s office, so I understood the other side of the regulations,” Weber commented. “Moving into elder law was a natural transition for me.”

“We are proud of our reputation of being premier elder law specialists.” said Attorney Marshall. “Our reputation reflects the quality of our work and our love for what we do.  I am so honored that over the past 25 years our firm has been able to help thousands of families who were struggling with the issues my family faced in 1979.  Whether its estate and lifetime legal planning tools like powers of attorney and trusts, benefit programs like Medicare, Medicaid, and Veterans benefits, or financial planning tools like annuities, we have the experience and knowledge to help our clients achieve their goals. That is what Marshall, Parker & Associates is all about.”

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Long Term Care Planning Specialist/Estate Administration Position Open in Scranton Office

The Law Firm of Marshall, Parker & Associates is looking for a full-time Long Term Care Planning Specialist/Estate Administration person for our Scranton office. 

This individual must have a passion for working with families and the aging population. Other helpful experience and qualifications include:

            -Basic understanding of the Medical Assistance qualifying process and estate planning documents;

            -Familiarity with or an interest in federal, state and local social service benefits, particularly in the Lackawanna County area;

            -Experience with finances;

-Basic understanding of estate administration is helpful, but is not required

-Working knowledge of Word, Excel, Outlook and use of the internet;

            -Must possess compassionate people skills and the ability to react responsively to client needs; and

            -Must have the ability to work independently, as well as within a team-oriented environment.

Although this individual will be stationed in the Scranton office, travel to our Wilkes Office and other locations will be required with mileage reimbursement. No health care benefits will be provided.

Please submit resume as follows:

Josephine Reviello

Marshall, Parker & Associates

329 Penn Avenue, Suite 202

Scranton, PA 18503

webmail@paelderlaw.com

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Learn How To Protect Your Family from Long Term Care Costs

at our FREE Consumer Workshops

-Saturday, January 10, 2009 from 10:00 AM until 12:00 PM at the Watson Inn, 100 Main Street in Watsontown  

-Saturday, January 31, 2009 from 10:00 AM until 12:00 PM at Bonfatto’s Restaurant, 205 Park Place in Bellefonte  

 More information available on our website at www.paelderlaw.com/workshops.html

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 Contacting Marshall, Parker & Associates for Assistance

Marshall, Parker & Associates is a nationally recognized law firm which provides long-term care planning, estate planning & estate administration services to Pennsylvania clients from our offices in Jersey Shore, Williamsport, Wilkes-Barre and Scranton.

If you or someone you know needs assistance with estate planning or with qualification for Medicaid benefits for nursing home or home care, please call us toll free at 1-800-401-4552.

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*Attorneys Marshall and Parker are certified as Elder Law Attorneys by the National Elder Law Foundation under authorization from the Pennsylvania Supreme Court

**In addition to her law degree, Attorney Colbert holds an advanced legal degree (LLM) in Estate Planning from the University of Miami School of Law.

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