The Elder Law Blog

Few people really know my wife.  She is an awesome person and most people would agree.  What most people don’t know is that she has a great sense of humor and keeps the whole family laughing.  She has this saying between us “we don’t celebrate love”.  She says it being sarcastic but it’s her way of saying we shouldn’t spend much money on the romantic gifts around days like Valentine’s day or Christmas.  We do celebrate love every day.

For my clients, the elderly, they do have a hard time celebrating love.  The elderly are typically dealing with a spouse that is losing capacity and life is not very fun for them.  Many of the elderly have lost the love of their life due to death or due to the mental decline that plagues so many.  Days like Valentines Day bring up the memories of good days in the past and remind them of what they don’t have now.  It is many times a very sad day for them.

I want to take this opportunity to say Happy Valentines day to those whom I love and those who love me; my wife, my mom, my kids and many other people in my life that have influenced me throughout my life.  If you know of an elderly person that may have a bad day today due to the loss of a spouse due to death or incapacity, give them a call and let them know how much they mean to you and that you love them and thank them for loving you.

About the Author, Todd Whatley:

Todd Whatley is the founding partner of the Elder Law Practice of Whatley and Elrod, and the Managing Attorney of the Springdale, Arkansas office, serving the legal needs of the elderly in Northwest Arkansas, including Springdale and Fayetteville.  Todd Whatley has been working in elder law field since 2000, and became Arkansas’ second certified Elder Law Attorney in 2006.  The Elder Law Practice of Whatley and Elrod is focused on the legal needs of the elderly and their families.  Todd Whatley is a regular speaker for Continuing Legal Education seminars teaching other attorneys about elder law.

About the Elder Law Practice of Whatley and Elrod:

The Elder Law Practice of Whatley and Elrod is Arkansas’ largest Elder Law practice, with four locations through the state of Arkansas, in Bryant, Fort Smith, Springdale, and Bella Vista.  Todd Whatley and Justin Elrod, the managing partners at the Elder Law Practice, are committed to serving the legal needs of the elderly in Arkansas.  Their services include estate planning, creating wills, trusts, avoiding probate, special needs trusts, Medicare, Medicaid, and more.  The Elder Law Practice of Whatley and Elrod also specializes in VA benefits, assisting Arkansas veterans in getting the benefits and assistance that they have earned during their time spent serving our country.

Few things make me more angry than when attorneys practice law in a field in which they have no idea what they are doing.  Just the other day, I literally through a trust across the table and later had to apologize.

This lady had already transferred her house to her daughter 6 years before and all of her bank accounts were Payable On Death (POD) to her daughter.  Nothing was going through probate so why then do the trust?  When I asked my client this, she said the attorney said that by putting everything in this Revocable Living Trust this would “protect her assets from Medicaid since she didn’t own them any more”.  This is wrong.  Whoever is the beneficiary of the trust, has access to the trust and Medicaid will make the assets in the trust be depleted before Medicaid will pay the bill.  This is basic “lawyering 101″ but many attorneys don’t understand it.

Please understand that in Arkansas, a Revocable Living Trust (RLT) with the elderly person as the beneficiary of the trust does NOT protect assets from Medicaid.  Actually, have your home in a RLT will make you worse off for Medicaid than having a trust.  As I have discussed before, your home is a non-countable asset if it is in the applicant’s name.  However, putting the home into a RLT means that Medicaid cannot get their hands on the trust and the home will be a countable resource.

Now, please understand there are very many nuances to this rule and this procedure.  You have to work with an attorney that truly understands this process and knows how the Medicaid system work.

About the Author, Todd Whatley:

Todd Whatley is the founding partner of the Elder Law Practice of Whatley and Elrod, PLLC, and the Managing Attorney of the Springdale, Arkansas office, serving the legal needs of the elderly in Northwest Arkansas, including Springdale and Fayetteville.  Todd Whatley has been working in elder law field since 2000, and became Arkansas’ second certified Elder Law Attorney in 2006.  He is also a VA Accredited Attorney with the VA Administration.  The Elder Law Practice of Whatley and Elrod is focused on the legal needs of the elderly and their families.  Todd Whatley is a regular speaker for Continuing Legal Education seminars teaching other attorneys about elder law and he teaches the Elder Law Course at the University of Arkansas School of Law in Fayetteville. Todd is also on the National Board of Directors for the National Elder Law Foundation (www.nelf.org).  He manages the offices in Bella Vista, Springdale and Fort Smith.

About the Elder Law Practice of Whatley and Elrod, PLLC:

The Elder Law Practice of Whatley and Elrod, PLLC is Arkansas’ largest Elder Law practice, with four locations through the state of Arkansas, in Bryant, Fort Smith, Springdale, and Bella Vista.  Todd Whatley and Justin Elrod, the managing partners at the Elder Law Practice, are committed to serving the legal needs of the elderly in Arkansas.  Their services include estate planning, creating wills, trusts, avoiding probate, special needs trusts, Medicare, Medicaid and more.  The Elder Law Practice of Whatley and Elrod also specializes in VA benefits, assisting Arkansas veterans in getting the benefits and assistance that they have earned during their time spent serving our country.

I just met with a lady today that was somewhat distraught.  She had admitted her husband to the nursing home a few months ago.  The nursing home insisted on doing the Medicaid application for her.  After a short discussion, we discovered that there may be some problems that the facility did not ask about and will most likely cause the application to be denied meaning that there will be a bill at the nursing home that Medicaid will not pay.

I asked to see her admission paperwork and I found the “dreaded form”: Liability for Payment.  She signed a form that says she will be personally liable for her husband’s nursing home bill if for some reason (a messed up Medicaid application) the nursing home bill is not paid.  Therefore, since the facility did not ask all the right questions, as they should have, and since Medicaid takes 3-6 months to approve an application, this lady is now going to owe close to $20,000 for her husband’s nursing home bill.  You now see why she is distraught.

I know people think we as attorneys are just trying to make a living when we advise people to seek the advise of an attorney before signing any documents.  Here is a clear reason to seek the advice of an attorney.  In this situation, the nursing home has no incentive to do the application right or to ask the right questions.  They will get their money either way, from Medicaid or from the wife.

A good pointer is to always sign as agent under the Power of Attorney (if you have such a document, AND YOU SHOULD) on any document for that person.  Had this lady signed that document as agent under the Power of Attorney, this problem would have been corrected.  Also, you can refuse to sign the form.  Please seek the advice of a qualified Elder Law Attorney when you are dealing with these types of issues.  The money you pay up front could save you tens of thousands of dollars later.

About the Author, Todd Whatley:

Todd Whatley is the founding partner of the Elder Law Practice of Whatley and Elrod, PLLC, and the Managing Attorney of the Springdale, Arkansas office, serving the legal needs of the elderly in Northwest Arkansas, including Springdale and Fayetteville.  Todd Whatley has been working in elder law field since 2000, and became Arkansas’ second certified Elder Law Attorney in 2006.  He is also a VA Accredited Attorney with the VA Administration.  The Elder Law Practice of Whatley and Elrod is focused on the legal needs of the elderly and their families.  Todd Whatley is a regular speaker for Continuing Legal Education seminars teaching other attorneys about elder law and he teaches the Elder Law Course at the University of Arkansas School of Law in Fayetteville. Todd is also on the National Board of Directors for the National Elder Law Foundation (www.nelf.org).  He manages the offices in Bella Vista, Springdale and Fort Smith.

About the Elder Law Practice of Whatley and Elrod:

The Elder Law Practice of Whatley and Elrod is Arkansas’ largest Elder Law practice, with four locations through the state of Arkansas, in Bryant, Fort Smith, Springdale, and Bella Vista.  Todd Whatley and Justin Elrod, the managing partners at the Elder Law Practice, are committed to serving the legal needs of the elderly in Arkansas.  Their services include estate planning, creating wills, trusts, avoiding probate, special needs trusts, Medicare, Medicaid and more.  The Elder Law Practice of Whatley and Elrod also specializes in VA benefits, assisting Arkansas veterans in getting the benefits and assistance that they have earned during their time spent serving our country.

I honestly do try to make my blog posts a mix between uplifting things, information and then the occasional rant.  It seems that lately I have been ranting more than anything else.  I’m sorry, but here comes another one.  It shows how people who do not choose to use an attorney to help them with Medicaid benefits, could lose everything.

If you follow our blog and website, you should know that a person applying for Medicaid can own their house as a resource and still qualify for Medicaid.  The State says the reason for that is so the person has a home to go to if they get better and need to leave the nursing home.  That is NOT the real reason.  The reason is because the house is a pot of money that the State can go after when the Medicaid recipient dies.  I say this because the rule of “owning a home as a non-countable resource” does not apply if the home is in some other state.  The reason is that the State cannot put a lien on property that is not in Arkansas.  Therefore, owning a house in another state makes the house a countable resource and therefore you don’t qualify.

Knowing this, I am working with a person who owned a home just over into another state but in a nursing home in Arkansas.  I know this person will never qualify for Arkansas Medicaid owning this home.  Therefore, we had the family trade this home for a joint interest in the child’s home in Arkansas since this is most likely where the person would live if they could leave the facility.  This trade was a really good trade for the applicant.  The total value of the home in the other state was much less than half of the value of the child’s home.  The Medicaid rules are clear that joint ownership with a right of survivorship is proper way to own real estate (and it not go to the State at death since the other co-owner gets to keep it) and a non-countable resource if the other co-owners refuse to sell the property.  I thought this was a brilliant plan.

Well, apparently not.  Arkansas DHS is now saying we have to show that the other c0-owners have to show they refuse to sell (showing that DHS recognizes the applicant’s ownership in the property) AND they imposed a gift penalty for “giving away” the home in the other state.  This is a classic example of Arkansas DHS “having their cake and eating it too” mentality.  I am an attorney that deals with this every day and I know the rules.  What if a person applying for Medicaid had somehow done this properly?  The State would have told them it was wrong and they would have believed them, losing everything. The other thing that may have happened would be that it would take DHS 6 months to tell the family that owning a home is great, EXCEPT owning a home 5 miles away in another state is not allowed.  Therefore, you owe for your nursing care for the past 6 months, or $30,000.

This is why I do what I do.  I will appeal this.  This will tie up hours of my and my staff’s time doing research and numerous hours of the State employees to defend something that is not defendable.  This is my life.

People ask me all the time “We don’t really need an attorney to do our Medicaid application do we?”.  The answer is no, however, beware.  One mistake could cost you everything or a whole lot.  The amount you pay an attorney who knows this system VERY will pales in comparison to what you could lose.

Having attended the National Academy of Elder Law Attorneys conference in Boston just recently, I was made aware of a new trend in hospitals that could cost my clients thousands of dollars and also probably leave Nursing Homes holding the bag for significant unpaid rehabilitation fees.

A little background is needed.  When a person with Medicare spends 3 days (midnights) admitted to a hospital, they are then qualified for rehabilitation in a nursing home that is qualified to provide Medicare rehabilitation.  This rehabilitation can last up to 100 days.

However, the trend I am seeing now, is that hospitals are under significant pressure from Medicare to fully treat a person once they are “admitted” to the hospital.  There are guidelines that the hospital has to meet basically to ensure that person stays healthy once they are dismissed to the hospital.  Therefore, what hospitals are now doing is bringing a person in for “observation” for many days rather than admitting them.  To the person in the hospital, it feels as though they are in the hospital.  They are getting care, tests, food, etc just like a person admitted to the hospital would get.  However, they are not technically admitted to the hospital and therefore do not get the benefit of paid rehabilitation afterwards.

My fear is that people (my clients) are going to think they were admitted to the hospital and then go to the nursing home under rehabilitation only to have Medicare deny payment due to them not fulfilling the “3 day” requirement.  These days in the facility with Physical Therapy, Occupational Therapy, Speech Therapy and skilled nursing can fun many hundreds of dollars per day.

The Center for Medicare Advocacy, Inc. had filed a lawsuit regarding this action to help people qualify for rehabilitation if they person spends 3 days, regardless of the label attached to it.  I will be monitoring the progress of this lawsuit and post updates as they become available.

I have been trying to get word out over the last few months about a policy change that DHS is thinking about that will be very devastating to the people of Arkansas.  The attached link shows that Minnesota did the same thing Arkansas is thinking about and a Federal Judge has allowed them to do it now.  The States can choose to do this or not do it.  Arkansas is one of 46 states that have allowed for part of a gift to be returned.  This new policy will require the full gift to be returned.  This is going to be devastating to the elderly that pay for things for family members with no thought whatsoever as to qualifying for Medicaid in the future.

Also, the elder law attorneys in the State requested a “hearing” with DHS to discuss this law and why it was being imposed and to hear from us the horrible effects it would have on the citizens.  This “hearing” was a few folks from DHS gathered in a room to “listen” to our concerns.  They refused to answer any questions and at the end told us they would (in essence) “get together and consider our issues and come up with a final ruling”.  I am fully convinced that they will still impose the policy regardless of what we say.

It is not too late.  DHS responds to phone calls from local Representatives and Senators.  A call to your Representative or Senator about this rule change can still keep it from being imposed and possibly reverse it if it does get imposed.  Please  call them and tell them that you do not want this policy changed.

Take a second to read this article on the Minnesota case.  It has some valid examples of why this law should not be imposed.  Call me if you have questions.

http://attorney.elderlawanswers.com/home/news/id/9589