Child
Responsible for Mother’s Nursing Home Bills
Written
By: Attorney
Jeffrey A. Marshall
, CELA*
Can children be held liable for their parents’
nursing home bills? According
to the Pennsylvania Superior Court the answer is yes, at least under
certain circumstances.
When Betty
Bud
d died in 1999, she owed a nursing home $96,000.
The nursing home sued Betty’s daughter, Elizabeth for the money.
It claimed
Elizabeth
was responsible for her mother’s debt because of an old
Pennsylvania
statute requiring a child of sufficient financial ability to care for and
maintain or financially assist an indigent parent (62 P.S. §1973). Under
this statute, the court has the discretion to determine what amount of
support is appropriate.
In essence, this law means that a child can be held
liable for the parent’s nursing home costs if three elements exist: (1)
the parent is indigent; (2) the child has sufficient ability to support
the parent; and (3) the child is not protected by some other law.
In Betty’s case, the first two elements were easy
to prove.
Elizabeth
had used a power of attorney to transfer most of her mother’s funds to
herself. This made Betty
indigent and made it clear that
Elizabeth
had sufficient ability to support her. However, parents often make
substantial gifts to their children before or during a nursing home stay
without resulting in the children becoming responsible for the cost of
care. How can they do this?
Because of the third element: the existence of a law that protects the
children; a protection found in the Medicaid program laws.
Once a resident qualifies for Medicaid, a nursing
home has to accept the Medicaid payments (including any co-pay amounts) as
payment in full for all covered services.
They cannot go after the child.
Elizabeth
talked to the County Assistance Office, but she never took the actions
needed for her mother to qualify for Medicaid.
Although
Elizabeth
transferred some of her mother’s funds, that only made Betty ineligible
for Medicaid for a limited period of time. Betty could have become
eligible after the waiting period expired. Once Betty qualified for
Medicaid, the program, not
Elizabeth
, would have become responsible for her cost of care. But, since
Elizabeth
most likely didn’t understand the rules, Betty never became eligible for
Medicaid and the protections didn’t apply.
Elizabeth
obviously needed some expert help to get her mother qualified for
Medicaid. The “spend
down” and transfer rules are complex and it is clear that she never
understood them. As a result, she will likely have to pay all of her
mother’s nursing home bills.
Although the nursing home may end up collecting its
debt, it also ends up being a loser in this case.
It is already over 4 years since Betty’s death and the nursing
home still hasn’t collected the money it is owed.
And there is little doubt that suing
Elizabeth
is costing the nursing home a lot in legal fees and costs.
Both
Elizabeth
and the nursing home would have been well served if
Elizabeth
had obtained the help of an experienced elder law attorney.
The lawyer could have made sure that the nursing home bills were
paid from Betty’s funds until the transfer penalty period ran out, and
then by Medicaid. Because the
Medicaid laws were misunderstood or ignored, both
Elizabeth
and the nursing home lost in the end.
The Government was the ultimate winner.
It never had to pay a cent towards the cost of Betty’s care.
Here is a link to the decision:
Presbyterian
Medical
Center
v.
Bud
d Superior Court of Pennsylvania,
August 29, 2003
http://www.superior.court.state.pa.us/opinions/a09045_03.pdf.
NAIC
Proposes Model Regulations for Annuity Sales to Seniors
Written
By: Attorney
Jeffrey A. Marshall
, CELA*
On
September 14, 2003
, the National Association of Insurance Commissioners (NAIC) adopted model
rules to govern sales of annuities to seniors.
The rules are intended to provide formal procedures to help protect
seniors from abusive annuity sale practices by insurance producers.
The model regulations, which cover both fixed and
variable annuities, will require insurance agents to attempt to obtain the
consumer’s financial, tax, investment objective and other information
necessary to determine investment suitability before proposing an annuity
to clients age 65 or older. The agent will then be required to have
reasonable grounds for believing the annuity is appropriate for the senior
client. Insurance companies
will need to design compliance standards to ensure that consumers are
receiving appropriate advice and that their agents are following the
rules.
While there are many types of annuities, variable
annuities typically involve investment in mutual fund type portfolios.
Fixed annuities typically involve guaranteed payments.
Variable (but not fixed) annuities are also governed by rules
issued by the National Association of Securities Dealers (NASD). The NASD
rules will be incorporated into the NAIC regulations.
The NAIC is made up of the chief insurance regulatory
officials of each state, so its model regulations carry a great deal of
weight. Its mission is to
assist state insurance commissioners regulating the insurance industry and
protect consumers. The model
regulation still needs to be formally adopted by individual states before
it has the force of law. This
should take place over the next year.
For more information, visit the NAIC website at www.naic.org.pressroom
.
When
Dad Shouldn’t Be Driving Anymore: Some Tips
Written
By: Geriatric Planning Specialist Suzanne Starr
America
is experiencing a dramatic increase in the number of fatal accidents
involving elderly drivers. Researchers attribute this to a 73% increase
since 1995 in the number of drivers who are age 70 and older and the
age-related changes in the physical condition of this population.
As drivers age, driving can become increasingly difficult and
dangerous as a result of eyesight loss, changes in cognition and muscular
dexterity, and slowed reaction time. This is a dangerous situation not
only for the elderly driver, but for everyone who is sharing the road with
them.
No one wants to be the
person who takes away someone’s independence; however there are times
when a concerned family member must intervene for the safety of their
loved one and the well being of others.
If you have a family member or friend who you feel should not be
driving, there are some resources and interventions that may be helpful.
Depending upon the
situation, it may be enough to sit down with the family member or friend
and openly discuss your concerns. Some
families have had success “losing” the keys or disabling the car.
Offer the driver transportation to errands, or invite them to go
with you when you do your shopping.
Perhaps public transportation can be used.
The Area Office of Aging
provides transportation for people age 60 and older.
The fee for this service is dependent upon the age of the
individual as well as the destination.
For a person age 60 and older, the cost to go for groceries, to a
senior center, doctor’s appointment, or to visit a family member in a
hospital or nursing home is fifty-five cents each way.
For other destinations the cost is $11.00 each way until the age of
65, when the fee is reduced to $1.65 each way for destinations other than
to the grocery store, medical appointments and to the hospital or nursing
home. Registering for this
service is easy. To sign up
for this service, go to your Area Office of Aging. You will need to take
either a birth certificate or driver’s license to verify age.
When More Drastic
Measures are Needed.
Often elderly drivers do
not want to admit, or just do not recognize that their driving abilities
have deteriorated and that their driving poses a risk to themselves and
others. They may resist
giving up their independence in transportation.
Families are often faced
with this difficult situation and may need to make tough decisions. This
may mean more drastic measures to protect their loved ones.
The Pennsylvania
Department of Transportation provides a medical unit that can assist
families who find themselves in this difficult situation.
A concerned family member or friend can
anonymous
ly contact this special unit by calling (717) 787-9662. The caller
provides the driver’s full name, address, and social security number (if
available). The medical unit first investigates the report to determine
its validity. If the medical
unit determines that the concern is legitimate it will send a letter to
the driver and require a medical evaluation.
The driver has 30 days to respond.
If the driver does not have the medical evaluation, a second letter
is sent that states unless the medical evaluation is completed within 45
days, their driver’s license will be suspended.
If the driver takes but does not pass the physical exam, their
license is suspended.
Although harsh, this
approach is effective when other efforts have been unsuccessful.
Sometimes difficult decisions and hard choices have to be made out
of compassion and concern. In
the end, we all want to ensure that our loved ones are safe.
The regulations governing
the Pennsylvania Department of Transportation medical unit are contained
in the Pennsylvania Code which is available online. http://www.pacode.com.
See Title 67, Chapter 82, Section 82.8.
“Using
Medicaid to Pay for Home and Nursing Facility Care”
Below
you will find a list of some of the seminars that we will be presenting
throughout Northeastern and
Central Pennsylvania
over the next few months. Lifetime planning and problems related to long
term care are increasingly important issues for seniors. Four out of every
ten people reaching age 65 will spend some time in a nursing home, and
many more will require home care and assistance with daily living.
The Elder Law Firm of
Marshall & Associates
is known throughout
Pennsylvania
for the expert help we provide seniors who are faced with long term care
needs. Often families struggle to care for their loved one at home for as
long as possible. We help these care-givers find ways to get the financial
help they need so that the highest quality care can be provided in the
most appropriate setting (at-home, assisted living, or nursing facility).
If nursing home placement becomes necessary, we work
with the facility to help make the transition go as smoothly as possible.
We make certain that the nursing facility gets paid in a timely manner
while teaching the family how they can pay nursing home costs without
losing their homes or going broke.
Join us for one
of these free seminars and learn what you need to know about how to get
the help you need and protect your family's financial security when your
spouse or parent is faced with a long term illness.
Each seminar is FREE
and open to seniors, their families, elder care professionals, and anyone
else who needs to learn more about this complex subject.
Each seminar lasts about 1 ½ hours, including a “Question &
Answer” Session.
-
Williamsport
:
Wednesday, October 15th at
6:30
PM
at
The Radisson
-
Wilkes-Barre
:
Saturday, October 25th at 10:00 AM at The Woodlands
Reservations
are suggested, but not required. SIGN
UP ONLINE or call 1-800-401-4552 for more information or to
reserve your spot for one of these free seminars!
Did
you know… past issues of the Elder Care Law Alert are available on our
website at:
www.paelderlaw.com/news.html
Do
you have a friend or colleague who would enjoy reading the
Elder Care Law Alert? If
so, please feel free to forward it to them. Simply use the “Forward”
button on your e-mail program.
To
subscribe or unsubscribe to the Elder Care Law Alert,
simply
send a request to:
webmail@paelderlaw.com
*Attorney
Marshall
is certified as an
Elder Law Attorney by the National Elder Law Foundation under
authorization from the Pennsylvania Supreme Court
© 2000-2005
Marshall & Associates www.paelderlaw.com
