Health Care Reform and Elders:

I have been so busy representing my clients that I fell behind with my blog posts. The White House has been busy as well with big news items like financial reform and the recent oil spill, which quickly eclipsed health care reform in the public eye.

However, health care reform is here to stay and it is important to understand how it will change the lives of elders. Health care reform will impact elders in many different ways, from closing the Medicare Part D doughnut hole to creating a national long-term care insurance option. Below are some important provisions of the new law as it relates to elders. Follow the links at the end of this post to learn more.

Medicare:

• Creates a $250 rebate to Medicare Part D beneficiaries who hit the doughnut hole* (or as we Massachusetts folks like to say, the donut hole) in 2010.
• Closes the Medicare Part D doughnut hole by 2020, including phased-in mandatory drug discounts for prescriptions filled in the doughnut hole.
• Provides a free annual wellness visit and prevention assessment for Medicare beneficiaries.
• Extends the life of the Medicare Trust Fund by about nine years, now projected to be depleted in 2026 (as opposed to 2017, which was the projected depletion date before health care reform). 
• Ties Medicare Part D Premiums to income, resulting in higher premiums for many beneficiaries.

Medicaid:

• Creates a new community based care option and creates incentives for states to offer the option. Massachusetts already has a community based care option, and it is not yet clear whether the new option will be any better.
• Mandates that states include spousal impoverishment protections (Massachusetts already has these protections in place).

Other:

• Creates a national long-term care insurance program which will be funded through voluntary payroll deductions. Community Living Assistance Services and Supports (CLASS) program.
• Creates a number of care coordination programs and options.
• New nursing home regulations, including mandating training for workers who care for residents with dementia.
• Creates a number of new protections against elder abuse, including creating the Elder Justice Coordinating Council, and provides dedicated funding to Adult Protective Services.

Find Out More:

CBS: http://bit.ly/cCJKxi

Wallet Pop: http://bit.ly/cfw3y0

The Christian Science Monitor: http://bit.ly/aAyYba

The White House: http://bit.ly/9A1Fxi

AARP: http://bit.ly/9TCFqK

The Boston Globe: http://bit.ly/9E5xam

* for those of you unfamiliar with the term “doughnut hole”, it is the unofficial name for the Medicare Part D coverage gap. The coverage gap is a period of time during which the Medicare recipient has exceeded his or her drug coverage limit, but has not yet incurred enough drug expenses to reach the catastrophic coverage threshold. The elder is responsible for paying his or her own prescription drug costs out of pocket during this period, and such costs can run to thousands of dollars each year.

Pets and Estate Planning

Pet ownership adds a layer of complexity to the estate planning process. It is important to consider who will care for your animals if you become incapacitated or unexpectedly unavailable. Will your loved ones remember to feed and care for your animal if you are unable to remind them? Do they know how to contact your pets’ veterinarian or what medications your pets are taking? Are your loved ones willing and able to care for your pet if you are unable to do so?

Pets and Estate Planning Documents:

If you are a pet owner, your basic estate planning documents should include pet provisions. For example:
• Your health care proxy should notify medical staff that you have pets at home and should ask medical staff to remind your health care agent to arrange for the care of your pets.
• Your power of attorney should give your agent (called your “attorney-in-fact”) the power to arrange and pay for the care of your animals, list contact information for emergency caregivers, veterinarians, and long-term care givers, and provide any specific instructions regarding the care of your animals.
• Your last will and testament should name a permanent caregiver for your pets along with a monetary bequest to offset the cost of care. Your will could also give specific instructions regarding the care of your animal.

Pet Trusts:

Pet trusts are trusts created to finance the care of animals after the death of the animals’ owner. Pet trusts are valuable tools to arrange for the ongoing care and maintenance of animals, and they reduce overcrowding at local animal shelters and humane societies.

Massachusetts is one of only eight states that do not allow pet trusts. The laws of the Commonwealth define your pet as property, and you cannot create a trust for the benefit of a piece of property. Though Massachusetts estate planning attorneys have devised creative ways to ensure the wellbeing of our client’s animals, pet trusts are far preferable to the options currently available.

House Bill H.1467 specifically authorizes pet trusts in Massachusetts, and on March 16, 2010, it was reported favorably out of the Judiciary Committee. The bill is now moving forward to the House Steering and Policy Committee and Senate Ways and Means Committee. Massachusetts pet lovers have their fingers crossed that soon we may have a much easier way to arrange for the care of our animals.

Pets and Emergency Preparedness:

Estate planning documents are not the only way to protect your animals in case of an emergency. You might consider obtaining a wallet card and door stickers to alert emergency responders that you have pets and provide contact information for an emergency caregiver. I provide wallet cards and doors stickers for all of my clients, but you can also order them on-line by following these links:

Stickers: (ASPCA Safety pack, including door sticker) http://www.aspca.org/about-us/free-aspca-stuff/free-pet-safety-pack.html

Wallet Cards: http://www.purrfectplay.com/cards-rescue.php
When you develop your estate plan, be sure to ask your attorney about pet provisions and the care of your pet. Remember that even if you have a loved one willing to care for your pet, he or she may not be able to do so without proper provisions in your estate plan. With just a little bit of pre-planning, you can ensure the safety of your animals and keep them out of shelters.



P.S. – Has anyone else noticed that PETCO (notice the PET there) now calls pets “animal companions” on signs in its stores? I think that is pretty funny.

Antipsychotic Medication and Health Care Proxies

A response to the Boston Globe Article: Nursing Home Drug Use Puts Many at Risk

An article in today’s Boston Globe reports that Massachusetts nursing homes use more antipsychotic drugs than nursing homes in most other states. Antipsychotic drugs were originally created for use with mental illness, but in recent years they have also been used to treat Dementia and Alzheimer’s. The Globe reports that while in some cases such treatment is helpful, in other cases it can worsen symptoms or be dangerous to a patient's health. For the full Globe article follow this link: http://bit.ly/crfcaZ


I routinely recommend that clients add a clause in their health care proxy* allowing the named health care agent to approve the use of antipsychotic medications. Today’s Globe article gave me pause, and I have seriously considered the soundness of my advice. However, after some thought I still believe it is appropriate and necessary to give your health care agent the power to approve administration of antipsychotic medications. Among other things, my job is to make life as simple as possible for my clients and their caregivers, and treatment with antipsychotic medication is appropriate in some cases.

That said, it is crucial that clients discuss their desires regarding future care, including the appropriate use of antipsychotic medications for the treatment of Dementia and Alzheimer’s, with all named agents and successors. If a person acting as a health care agent is not sure about whether or not to approve the use of an antipsychotic medication, he or she should consider seeking a second opinion from a physician or hiring a geriatric care manager to evaluate the pros and cons of using different medications.


We all hope to live long and healthy lives, but we must also be prepared for illnesses and accidents. Health care proxies are important because they ensure that you have a named agent to make health care decisions for you if you are ever unable to make those decisions for yourself.


Consider investigating the antipsychotic medications being used to treat the Dementia or Alzheimer’s of a loved one. If you have questions about your role as health care agent, ask your attorney for guidance.


* A health care proxy is a legal document authorizing a designated agent to make health care decisions for you if you are unable to make those decisions for yourself.

What Federal Estate Tax?

The federal estate tax expired at the end of 2009. As of January 1st there is no federal estate tax, though the Massachusetts estate tax is still in place.
What Happened?
In 2009 there was 45 percent federal estate tax on the estates of individuals with a $3.5 million exemption. The estate tax expired at the end of 2009, and if Congress does not act there will be no estate tax for 2010. In 2011, the estate tax will be reinstated at a rate of 55 percent with a federal exemption of only $1 million.
Why Did It Happen?
In 2001, the Tax Code was amended by the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA). EGTRRA had a sunset provision, which said that unless Congress acts before 2011 we will revert to pre-EGTRRA provisions. Pre-EGTRRA, the estate tax exemption was $1 million and the tax rate on assets over $1 Million was 55 percent. Congress was distracted at the end of 2009 and did not act to prevent the repeal of the estate tax.

What Should I Expect This Year (2010)?
Many attorneys believe that the Senate will act in 2010 to reinstate the 2009 estate tax (including the $3.5 million exclusion), and that the reinstatement will be retroactive to January 1st.

There is no guarantee, of course, that the Senate will act, and it may be that the estate tax will remain lapsed this year and revert in 2011. If this happens, in 2010 there will be no estate tax but there will be a capital gains tax (a tax on the difference between the current value of assets and the price of those same assets when purchased). In 2011, the federal estate tax will be imposed on all estates worth more than $1 million.

What Does This Mean for My Estate Plan?
I believe it is likely that the Senate will act in 2010 to reinstate the estate tax, and that the tax will be retroactive to January 1st. If Congress does not act, then the estate tax repeal could hurt the surviving spouse of someone dying in 2010 if the couple has a Marital Trust/Bypass Trust Plan (also known as an A/B plan). Please call my office to arrange an appointment if you have any questions about your estate plan.

Veterans Benefits

This January I am grateful for many things, including my healthy and happy family, my fulfilling law practice, and my own health and well being. I am also profoundly thankful to our servicemen and servicewomen now overseas and to our veterans here at home.

In May of 2009 I became accredited by the Department of Veterans Affairs to prepare and present claims for veterans benefits. Since becoming accredited, I have continued learning about veterans benefits and how such benefits could help my clients. Veterans do not need the advice of an attorney to obtain veterans benefits, and more often than not it is best to seek the advice of the local Veterans Service Officer (VSO). Your local VSO is trained and knowledgeable, submits benefits claims every day, and is available to help you apply for benefits at no cost.

Long-Term Care Planning:

It is essential to look at possible veterans benefits when putting together a long-term care plan or when facing an emergency care situation. Aid and Attendance benefits, for example, are often available to help defray the cost of assisted living expenses. If you are retiring or are post-retirement, check with your local VSO to see what benefits you might be entitled to.

Veterans Service Officers:

If you live in Waltham, Walter Hoyt is the VSO and he can be reached at 781-314-3415, http://is.gd/54Gud. If you live in Watertown, call Robert Erickson at 617-972-6416, http://is.gd/54GzX. Follow this link to find Massachusetts Veterans Service Officers by town: http://is.gd/54Gn5.

Veterans Benefits Tips:

• While Attorneys and other providers can charge for counseling you about the planning implications of receiving VA benefits, it is illegal to charge a fee for helping you prepare and submit a VA benefit application.

• Veterans benefits include compensation benefits for chronic conditions incurred, caused, or aggravated by service and pension benefits for indigent veterans or surviving spouses. For the purposes of receiving pension benefits, your medical expenses will be deducted from your income when determining eligibility.

• If you are a veteran who served in Vietnam, consider compensation benefits – many conditions are presumptively service connected for Vietnam veterans.

For more information about veterans benefits, call your local VSO or check out these links:

Massachusetts Department of Veterans Services: http://is.gd/54U7D

U.S. Department of Veterans Affairs: http://www.va.gov/

Compensation & Pension Service: http://www.vba.va.gov/bln/21/


Happy Friday Everyone!



-Audrey