Archive for the ‘Long Term Care Planning’ Category

Forward this to your Favorite Veteran

Thursday, October 7th, 2010 Laurie Ohall

Legal Issues with Veterans Benefits

Accreditation
Federal law dictates that no one may help a veteran in the preparation, presentation and prosecution of an initial claim for VA benefits unless that person is accredited. The only exception to this law is that any one person can help any veteran — one-time only — with a claim. To help any veteran a second time requires accreditation.

VA recognizes 3 types of individuals for purposes of accreditation.

(1) Accredited attorneys
(2) Accredited agents and
(3) Accredited representatives of service organizations. (Veterans Service Officers)

In order to be accredited to help veterans with new claims, an individual desiring this certification from VA must submit a formal application, must meet certain character requirements and work history requirements and — except for attorneys — must pass a comprehensive test relating to veterans claims and benefits. There are also requirements for ongoing continuing education.

Without accreditation no one may help a veteran with a claim more than one time.

What Does It Mean to Help a Veteran with a Claim?
VA interprets its prohibition on preparing, presenting and prosecuting a claim to mean that talking to a veteran or a veteran’s qualifying spouse or dependent after that person has indicated an intent to file a specific claim for benefits requires accreditation. Anyone can talk about veterans benefits in general with any veteran and need not be accredited. The point at which discussion narrows down to specific information about the veteran’s service record, medical conditions, financial situation including income and assets and other issues relating to a claim specific to a veteran or dependent triggers accreditation. According to VA, discussing the specifics of the claim means that the veteran has expressed an intent to file an application for veterans benefits, and at this point, the consultant helping the veteran must be accredited.

Stated again: An individual cannot advise a veteran or other eligible beneficiary about that person’s specific claim for VA benefits unless that individual is accredited.

It does not matter whether physical help with filing the claim is provided or not. The need for accreditation occurs at a much earlier stage than becoming physically involved in the claim. For a better understanding of how VA General Counsel interprets the need for accreditation please go to the VA Office of General Counsel Website — Frequently Asked Questions about Accreditation at http://www4.va.gov/ogc/accred_faqs.asp

Working under the Umbrella of an Accredited Attorney or Accredited Claims Agent
Many individuals or organizations who are not accredited and who are promoting and helping veterans obtain their benefits are often attempting to work under someone who is accredited. Most of these individuals are doing it wrong and not complying with the law.

These individuals make sure that the application is done by an accredited attorney or an accredited agent. In some cases, non-accredited individuals will refer veteran households to a local veterans service officer (an accredited representative of a service organization).

Unfortunately, most individuals who are not accredited and who are operating with someone who is accredited are still illegal. This is because the non-accredited individuals become involved in the claim by providing advice after an intent to file and in many cases they help gather documents and other pertinent information. As mentioned above, these activities require accreditation. The only way that a non-accredited individual can operate legally to assist someone who is accredited is to immediately refer a veteran or dependent to an accredited person when first understanding an intent to file a claim. No additional help or advice may be given after the intent to file has been recognized.

Many accredited attorneys are also not operating legally. Only an accredited attorney — one-on-one with the client — may be involved with a claim. Anyone else, inside or outside of the office, cannot assist with the claim except under certain limiting conditions. Specifically, in order to work under an attorney, a non-accredited assistant must either be another attorney in the office, a certified paralegal in the attorney’s office or an office law student or an intern. The client must also sign a consent letter allowing this arrangement. This consent must be filed with the original application. No other arrangement is allowed. Please see 38 CFR § 14.629 for an explanation of this requirement.

Charging a Fee for Help with Filing a Claim
Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). The requirements under this exception are very specific. In our opinion, no one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways these people are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)

(1) The person paying the fee is not a disinterested third party as required by law.
(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.
(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.
(4) The fee is contingent upon a percentage of the amount of the approved benefit.

We are seeing various financial arrangements for filing claims that are disguised fees in one way or another. As a general rule, anyone who would directly benefit financially from helping a veteran file a claim — whether a direct fee is charged or not — is in essence charging a fee. We know from numerous discussions with representatives, this is the way VA General Counsel treats these arrangements.

If you are working with someone who is not operating legally as outlined above, you should stop using that person’s services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You’re not legal. Not only could unauthorized individuals get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It’s not worth it. For help with accreditation issues you can contact the National Care Planning Council at info@longtermcarelink.net.

For more information, visit www.ohalllaw.com.

Posted in Long Term Care Planning, VA (Veteran's Affairs) | Comments Off

Getting your Affairs in Order – Are you prepared?

Thursday, September 23rd, 2010 Laurie Ohall

Getting Your Affairs In Order

If we had a crystal ball and could see into the future, we would not need to prepare ahead for end of life decisions.

James was 62 years old when a stroke made it impossible for him to communicate with his family. Neither his wife nor children knew anything about his financial or medical information. James had always taken care of things himself and left no written directives in his behalf. Besides having to locate important documents, the family was left to make their own decisions about James long term care.

The National Institute on Aging gives three simple, but important steps to putting your affairs in order:

  • “Put your important papers and copies of legal documents in one place. You could set up a file, put everything in a desk or dresser drawer, or just list the information and location of papers in a notebook. If your papers are in a bank safe deposit box, keep copies in a file at home. Check each year to see if there’s anything new to add.
  • Tell a trusted family member or friend where you put all your important papers. You don’t need to tell this friend or family member about your personal affairs, but someone should know where you keep your papers in case of emergency. If you don’t have a relative or friend you trust, ask a lawyer to help.
  • Give consent in advance for your doctor or lawyer to talk with your caregiver as needed. There may be questions about your care, a bill, or a health insurance claim. Without your consent, your caregiver may not be able to get needed information. You can give your okay in advance to Medicare, a credit card company, your bank, or your doctor. You may need to sign and return a form.” National Institute on Aging http://www.nia.nih.gov

Preparing Advance Directives or Living Will

Advance directives are legal documents that state the kind of medical care or end of life decisions you want made in your behalf. It is a way for you to communicate your wishes to family or health care professionals. Emergency response medical personnel cannot honor Advance directives or living wills. They are required to save and stabilize a person for transfer to a hospital or emergency facility. Once at the facility a physician will honor the directives.

The Living Will as part of your directives gives your consent or refusal for sustained medical treatment when you are not able to give it yourself. If this document is not in place then a family member or physician will decide such things as:

  • Resuscitation if breathing or heartbeat stops
  • Use of breathing machines
  • Use of feeding tubes
  • Medications or medical procedures

Advance Directives and Living Wills are legal throughout the United States; however, some states may not honor other states’ directive documents. Be sure to check with the state you live in for their requirements.

Review your directives periodically. They do not expire, but your wishes may change.
A new or revised Advanced Directive invalidates the old one. Be sure your family member or healthcare proxy has a current copy.

Choosing a Power of Attorney

General Power of Attorney – authorizes someone to handle your financial, banking and possibly real estate and government affairs as long as you remain competent.

Special Power of Attorney – authorizes someone you designate to handle certain things you cannot do yourself for a period of time.

Durable” Power of Attorney -The general, special and health care powers of attorney can all be made “durable” by adding certain text to the document. This means that the document will remain in effect or take effect if you become mentally incompetent.

Many people do not know the difference between a general and a durable power of attorney. A general power of attorney is a document by which you appoint a person to act as your agent.

Agents are authorized to make decisions for you, sign legal documents, etc. Many people are unaware that a General Power of Attorney is revoked when the person granting that power becomes incompetent or incapacitated.

It is the “Durable” Power of Attorney that allows for an agent to continue making decisions on your behalf no matter what happens to you. A responsible adult child of an aging parent would be given a “durable power of attorney” to act on behalf of the parent. This provides broader authority than just adding the child’s name to bank accounts and documents.

You may choose to produce notarized power of attorney documents on your own. If your estate is large and real estate or business is included it is advised to secure a reliable attorney.

Law Offices of Laurie Ohall    www.ohalllaw.com

National Care Planning Council http://www.longtermcarelink.net/a2cfindattorney.htm

Posted in End of Life Issues, Estate Planning, Health Care Directives, Living Will, Long Term Care Planning, Senior Lifestyles | 4 Comments »

Attorney Wins Landmark Settlement in Medicaid Case

Friday, August 20th, 2010 Laurie Ohall

The settlement of a class action lawsuit in Maryland clarifies when nursing home residents do not have to contribute to the cost of their care, and the case could be a “road map for other states,” according to the Baltimore Sun.

The lawsuit, which was pursued by ElderLawAnswers member attorney Ron M. Landsman, among others, addressed how nursing home residents would pay for medical bills that they incurred before they became eligible for Medicaid. The typical situation involves a nursing home resident trying to get Medicaid coverage who does not quite qualify for benefits because her assets are slightly over the limit. But at the same time, she has too few assets to pay the full cost of her care in the nursing home before she becomes eligible for Medicaid. After the resident qualifies for Medicaid, she will owe the nursing home money often thousands of dollars — and could be discharged for the unpaid bill.

Federal law requires that Medicaid recipients in such situations be allowed to deduct these health care costs from the amount of their income that they would normally contribute to their care. The resident’s available income would instead go to pay the medical debt until the debt had been paid. During this time, the Medicaid program pays the nursing home the resident’s full cost of care.

Maryland was among a handful of states that refused to follow federal law in this area, and instead was requiring Medicaid beneficiaries to contribute all their available income to their cost of care, regardless of their old medocal debts. In some cases, families of nursing home residents were repaying the outstanding medical debts out of pocket, and in others the nursing homes simply weren’t being paid. In 2005, Landsman and two other elder law attorneys sued to force Maryland to follow federal law.

According to the recent settlement in the case, Smith v. Colmers (Md. Cir. Ct. Balt. City, No. 24-C-05-007421, May 12, 2010), Maryland agrees to allow nursing home residents to use their available income to pay three months’ worth of old medical debts. The state has also agreed to contribute $16 million to a fund that will reimburse nursing home residents or their families for medical expenses that they were forced to pay directly to a nursing home after they became eligible for Medicaid. The fund will also help to reimburse nursing homes for unpaid resident bills. In return, up to $64 million in nursing home bills will be forgiven.

The class of plaintiffs was comprised of more than 12,000 current and former nursing home residents, and more than 300 homes were owed money.

For more on the case in the Baltimore Sun, click here. For a similar article in the Washington Post, click here.

Posted in Long Term Care Planning, Medicaid, Senior Lifestyles | Comments Off

Recognizing Symptoms of Dementia

Thursday, June 10th, 2010 Laurie Ohall

The Brown family reunion has always been an event everyone looks forward to. Family visits, games, stories and everyone’s favorite foods are always on the agenda. On the top of the menu is Grandmas Lemon Coconut Cake. Grandma always makes the traditional cake from her old family recipe. This year, however, the cake tasted a little on the salty side, perhaps a half cup full of salty.

Though the family was disappointed over the cake, of more concern was Grandma’s confusion with the recipe and her similar confusion about the loved ones around her. Could something be wrong with grandma’s mental state?

One might say that for an elder person a little forgetfulness or confusion is normal, but when do you know if there is a serious problem, such as dementia?

An online article from FamilyDoctor.org outlines some common symptoms in recognizing dementia.

“Dementia causes many problems for the person who has it and for the person’s family. Many of the problems are caused by memory loss. Some common symptoms of dementia are listed below. Not everyone who has dementia will experience all of these symptoms.

  • Recent memory loss. All of us forget things for a while and then remember them later. People who have dementia often forget things, but they never remember them. They might ask you the same question over and over, each time forgetting that you’ve already given them the answer. They won’t even remember that they already asked the question.
  • Difficulty performing familiar tasks. People who have dementia might cook a meal but forget to serve it. They might even forget that they cooked it.
    Problems with language. People who have dementia may forget simple words or use the wrong words. This makes it hard to understand what they want.
  • Time and place disorientation. People who have dementia may get lost on their own street. They may forget how they got to a certain place and how to get back home.
    Poor judgment. Even a person who doesn’t have dementia might get distracted. But people who have dementia can forget simple things, like forgetting to put on a coat before going out in cold weather.
  • Problems with abstract thinking. Anybody might have trouble balancing a checkbook, but people who have dementia may forget what the numbers are and what has to be done with them.
  • Misplacing things. People who have dementia may put things in the wrong places. They might put an iron in the freezer or a wristwatch in the sugar bowl. Then they can’t find these things later.
  • Changes in mood. Everyone is moody at times, but people who have dementia may have fast mood swings, going from calm to tears to anger in a few minutes.
    Personality changes. People who have dementia may have drastic changes in personality. They might become irritable, suspicious or fearful.
  • Loss of initiative. People who have dementia may become passive. They might not want to go places or see other people.”

Dementia is caused by change or destruction of brain cells. Often this change is a result of small strokes or blockage of blood cells, severe hypothyroidism or Alzheimer’s disease. There is a continuous decline in ability to perform normal daily activities. Personal care including dressing, bathing, preparing meals and even eating a meal eventually becomes impossible.

What can family members do if they suspect dementia? An appointment with the doctor or geriatric clinic is the first step to take. Depending on the cause and severity of the problem there are some medications that may help slow the process. Your doctor may recommend a care facility that specializes in dementia and Alzheimer’s. These facilities offer a variety of care options from day care with stimulating activities to part or full-time live-in options. Sometimes if patients tend to wander off, a locked facility is needed.

In the beginning family members find part time caregivers for their loved one. At first, loved ones need only a little help with remembering to do daily activities or prepare meals. As dementia progresses, caregiving demands often progress to 24 hour care. Night and day become confused and normal routines of sleeping, eating and functioning become more difficult for the patient. The demented person feels frustrated and may lash out in anger or fear. It is not uncommon for a child or spouse giving the care to quickly become overwhelmed and discouraged.

Family gatherings provide an excellent opportunity to discuss caregiving plans and whole family support. It is most helpful if everyone in the family is united in supporting a family caregiver in some meaningful way.

“The first step to holding a family meeting, and perhaps the most difficult one, is to get all interested persons together in one place at one time. If it’s a family gathering, perhaps a birthday, an anniversary or another special event could be used as a way to get all to meet. Or maybe even a special dinner might be an incentive.

The end of the meeting should consist of asking everyone present to make his or her commitment to support the plan. This might just simply be moral support and agreement to abide by the provisions or it is hoped that those attending will volunteer to do something constructive. This might mean commitments to providing care, transportation, financial support, making legal arrangements or some other tangible support.” The Four Steps of Long Term Care Planning

Professional home care services are an option to help families in the home. These providers are trained and skilled to help with dementia patients. Don’t forget care facilities as well. It may be the best loving care a family member can give is to place their loved one in a facility where that person is safely monitored and cared for.

The National Care Planning Council supports caregiving services throughout the country.
www.longtermcarelink.net

Tags: , , ,
Posted in Long Term Care Planning | Comments Off