Texas Estate Planning

The Sandwich Generation

Are you running from baseball practice to your parent’s doctor’s appointment? Fielding stressful texts and calls from both your children and your parents about everything that’s changing in their lives, perhaps you’re trying to figure out what’s changing? Do you maybe feel like you’re being squished between two pieces of stale bread, with no room to breathe? Well, you might be part of the Sandwich Generation. 

 

If you haven’t heard the phrase before, “The Sandwich Generation” means you’re not only a caretaker for your children, but you’ve also become responsible for your parents’ care needs as well. It can be stressful to be pulled in so many directions at one time. When the responsibilities come to be too much for one person’s schedule, families typically begin the nursing home/assisted living conversation, which can be tricky to navigate. 

 

The biggest question: How are we going to pay for a nursing home? 

“Caring for a family member who may not have long-term care or short-term care insurance or disability insurance, can drain your own savings and disrupt your own retirement plans. A recent AARP study found that many adults in their 40s, 50s and 60s are helping their parents financially.” - From a CNN article from February 2023 about family caregivers 

 

Pricing and location are typically the first logistics families look at when searching for long term care. It’s very important to find a facility that works for your loved one’s care needs, budget, and socialization.  

 

No matter your situation, it can be difficult to saddle a new bill each month if you’re paying for long-term care. Luckily, there are quite a few solutions to help ease this financial burden. At Ard Law Firm, PLLC, we take an individualized approach to each client’s case, factoring in your needs, assets, and personal values in order to create the best plan forward for you, and your family. 

 

Our biggest focus is on asset protection and probate avoidance– we do our best to help future generations carry on the legacy of past generations. Getting all of your ducks in a row will require some collaboration with us, but our process is designed to save you the headache of penalty periods and reduce, or even eliminate, the burden of probate later down the line. 

 

Medicaid Myths

If you’re financially helping your parents with the cost of their care, then it’s time to call an Elder Law Attorney adept at Medicaid. There are many myths surrounding Medicaid, probably because the program varies from state to state and new laws dictating Medicaid are passed every year. It’s hard to hit the moving target of Medicaid when you have so many other things to take care of. 

 

Luckily, we have a dedicated Medicaid team that will guide you and your family through the application process and follow it until your loved one is approved for financial assistance to pay for a nursing home. We file complaints and appeals on your behalf while also staying in contact with the Medicaid office to make sure nothing falls through the cracks. 

 

Check out Sandy’s Medicaid Myths fact sheet to learn more about Medicaid eligibility and logistics: Download 2023 Medicaid Myths

 

Protect the Family Home

One of the biggest Medicaid Myths we hear is that “Medicaid will make me sell the house” – FALSE! 

 

We always recommend waiting to sell the house until you talk with a licensed attorney who works on Medicaid. With asset and income limits and exemptions, it’s important to learn about all of your options. For instance, there is a document called a “Transfer on Death Deed” which has been incredibly helpful to keep the family home out of probate and in the hands of the next generation.

 

Seek Professional Counsel

As you can see, there are many different legal details that go into getting qualified for Medicaid. At the beginning of the process, you will have to provide ample paperwork to prove medical and financial necessity to the Medicaid office, but those efforts can really pay off in the end when the house is securely transferred outside of probate and Medicaid has covered a substantial portion of nursing home costs. 

 

Each case is unique–the earlier you speak to an expert in the field, or a licensed attorney familiar with Medicaid, the more control over your plan you’ll have. Call us today to schedule your free consultation 713-429-0218. Our director of client services will send you a questionnaire prior to your meeting. One of our attorneys will review your answers and start the conversation about your options to pay for nursing home care. If for some reason we’re unable to provide services to you and your family, we will do our best to refer you to an attorney who can help.

Saying Medicaid Estate Recovery Keeps Families in Poverty, Advocacy Groups Call for Abolishing It

To qualify for Medicaid coverage of long-term care, you must satisfy very complicated financial eligibility rules—rules that often can be traps for the unwary. One of the most significant traps is Medicaid's right to recover its expenses from your estate after you die – a practice known as “estate recovery.”

Under current Medicaid law, states are required to attempt to recoup Medicaid spending for long-term care services. Since about the only asset you're allowed to own and still get Medicaid coverage is your home, this right of estate recovery is the state's claim against your home. In other words, if you own a home, Medicaid is really a loan. It will pay for your care, but your house will have to be sold when you die to repay the state for the services it provided.

Now, five elder advocacy groups are calling on Congress to eliminate Medicaid estate recovery after a congressional advisory commission concluded that the practice recoups only a tiny percentage of Medicaid spending while contributing to generational poverty and wealth inequity.

“The burden of estate claims falls disproportionately on economically oppressed families and communities of color, preventing families from building wealth through home ownership, which has been historically denied to communities of color through discriminatory public policy,” the five groups – Justice in Aging, the National Academy of Elder Law Attorneys, the National Health Law Program, California Advocates for Nursing Home Reform, and the Western Center on Law & Poverty – wrote in a jointly authored Issue Brief, Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return. “Congress should amend Federal law to eliminate Medicaid estate claims. Alternatively, the law should be amended so that states have the choice of whether to use Medicaid estate claims, as recommended in a recent report to Congress by the Medicaid and CHIP Payment and Access Commission (MACPAC).”

In its March 2021 report to Congress, MACPAC recommended that Congress amend Medicaid law to make estate recovery optional for states, rather than required as it is now. The group, a non-partisan legislative branch agency that provides analysis and recommendations to Congress, the U.S. Department of Health and Human Services (HHS) and the states, also recommends that HHS set minimum standards for hardship waivers under the Medicaid estate recovery program.  Currently, it’s up to the states to decide what qualifies as “hardship.”

Pointing out that estate recovery recoups only about 0.55 percent of total fee-for-service long-term care spending, MACPAC recommends that states not be allowed to pursue recovery against any asset that is “the sole income-producing asset of survivors,” homes of “modest value,” or any estate valued under a certain dollar figure.

In their Issue Brief, the five advocacy groups go a step further. Noting that “no other public benefit program requires that correctly paid benefits be recouped from deceased recipients’ family members,” they call for the elimination of estate recovery “so that low-income families are better able to retain wealth and pass it on to future generations. Or, at a minimum, federal law should be amended to make estate claims voluntary.”

The Issue Brief details how Medicaid estate recovery keeps families in poverty, exacerbates racial wealth gaps, and runs counter to efforts to create more affordable housing.

To read the Issue Brief, click here.

To read the relevant chapter of MACPAC’s report to Congress, click here.

How to Manage the Cost of Long Term Care

A single woman has seen her annual premiums for long-term care rise by more than 60% over the last six years. Her cost in 2018 was $2,721, up from $1,626 in 2013. She’s keeping her policy, reports CNBC in the article “Long-term care insurance costs are way up. How advisors can help clients cope”

For her, the price she is paying is worth the cost. However, these types of increases can take older individuals off guard, especially if they are living on a fixed income.

Last year, Genworth Financial received 120 approvals by state regulators to increase premiums on their long-term care insurance business. The weighted average rate increase was 45%. General Electric said earlier this year that it expects to raise premiums on its LTC policies by $1.7 billion in the next ten years. Insurers hold between $160 to $180 billion in LTC reserves, covering 6 to 7 million people, according to estimates from Fitch Ratings.

Elder care has also become increasingly expensive. The annual national median cost of a private room in a nursing home was $100,375 in 2018, according to Genworth Financial. The annual national median cost of a home health care aide was $50,336 in 2018.

Insurers entering the business in the 1990s and early 2000s didn’t anticipate that so many policyholders would continue to pay their premiums and eventually file claims. Fewer than 1% of policyholders have let their policies lapse, and this caught many companies off guard.

Low interest rates have also hurt overall profitability for the insurance companies.

About 40% of the bonds held in insurance companies’ general accounts had a maturity of more than 20 years at purchase, said the American Council of Life Insurers.

There are a few ways to tweak benefits to keep premiums more affordable, while continuing to have this essential coverage.

Daily Benefit. Policies sold in 2015 had an average daily benefit of $259. Paring down the daily benefit could keep premiums down.

Benefit Period. Insurance contracts sold in the 1990s and early 2000 could pay out for the remainder of a client’s life. Reducing that period to five or ten years could make premiums lower.

Inflation Protection. Inflation riders help stay ahead of the rising cost of care. For older policyholders, this might reduce the inflation protection.

Waiting Period. Most policies have a waiting period before benefits will be received. Adjusting this period of time might reduce benefits.

Policyholders are advised to speak with the insurance company directly, instead of relying on the premium increase notices. This may reveal more options that can be used to reduce the premiums, without sacrificing too much in the way of coverage.

Reference: CNBC (September 8, 2019) “Long-term care insurance costs are way up. How advisors can help clients cope”

Being Forward-Thinking About Assisted Living to Avoid a Crisis

We always think there will be time to plan for assisted living, until something happens and then we are facing an emergency. When a loved one is discharged from the hospital and can’t return home, there’s little or no time to find the right place for them to live. As Next Avenue advises in the article “Planning Ahead for Assisted Living,” don’t wait for the emergency.

Many people deal with assisted living this way. Adult children uproot their lives and relocate to be near their aging parents. Spouses feel helpless when their husbands or wives refuse to even consider moving to a facility, yet they are not safe at home.

The senior often pushes back against leaving their home, which is understandable. However, when illness or aging takes a toll, it’s just a matter of time before they understand, usually the hard way.

One woman was the very model of aging-in-place, until turning 85. Then illnesses and a chronic condition started making it hard for her to move around. When she was taken to the hospital, she had to take a clear look at her situation. It was distressing, but she realized she had to make a change.

By 2030, the number of Americans age 65 and older is expected to increase dramatically, and for the first time in our country’s history, the number of older Americans will be higher than the number of children.

We may not know what life has in store for us. However, we can plan ahead.

Some people start looking at CCRCs–Continuing Care Retirement Communities. These are facilities that include independent living, assisted living and nursing home care, all on the same property. Some have secured memory care for those living with dementia. 

Research the costs, policies, and programs of the long-term facilities you may be considering. There are different services offered. Assisted living facilities are state-licensed housing communities that offer residents a range of services. They usually do not offer medical care. A skilled nursing facility/nursing home will have medical services.

Services in assisted living communities vary. Some offer meals and help with bathing, dressing and mobility, medication management, education and social activities. They may be large or small, with residential homes, where three or four residents live with a paid caregiver. Those are known as “adult foster homes.” Others are “assisted living homes,” which usually have 10 or so residents. In these facilities, the caretakers don’t live in the house, but 24-hour care is provided.

Here are some questions to ask, when visiting assisted living communities:

• Is the facility clean? Does it smell?
• What is the culture and atmosphere of the place?
• Are the residents and employees smiling, or does everyone look downcast?

It is recommended that people visit the facility several times, at different times, to get a better sense of the facility.  You should also eat in the dining room a few times. Are people friendly? How is the quality of the food? Set up a meeting with the people who run the facility and your family members.

Don’t dismiss the concerns of your loved ones when visiting facilities. They need to be comfortable, and it’s very important for them to have a voice in making this decision.

Reference: Next Avenue (Jan. 21, 2019) “Planning Ahead for Assisted Living”

Could Nursing Home Regulations Be on the Chopping Block?

Nursing home care in the U.S. is uneven. The quality of care can vary greatly between facilities. That is unlikely to change. However, care can be improved by the federal government enacting new rules that apply to all nursing homes.

That is what the Centers for Medicare and Medicaid Services attempted to do in the fall of 2016. New regulations were enacted that addressed many frequent patient complaints about their nursing homes.

As The New York Times reports in "Nursing Home Residents Gain New Restrictions," some elder law advocates are concerned that the Republican-controlled Congress will repeal the new regulations or that the Trump administration will work to undo them.

Many of the new regulations are uncontroversial. They address basic quality of life provisions. For instance, regulations requiring that patients be allowed to have any visitors they want at any hour as long as the visitors do not disturb other residents and that residents be allowed to choose their own roommates as long as both of them agree.

Some regulations are more controversial, such as not allowing nursing homes to require that residents agree to binding arbitration to settle disputes and changing the rules about readmission to facilities after an extended hospital stay.

It is too early to say which, if any, of these new regulations will remain in place. Elder law advocates will be watching closely.

Reference: New York Times (Jan. 27, 2017) "Nursing Home Residents Gain New Restrictions."

Nursing Home Intimacy

The introduction of Viagra and similar “lifestyle” medicines, as well as changing views on sexual relationships outside of marriage, has caused nursing homes to deal with something previously taboo.

Today, many nursing homes have had to think about what to do with their residents who are in relationships with each other.

Recently, The New York Times, in an article entitled “Too Old for Sex? Not at This Nursing Home,” wrote about a nursing home in Brooklyn that has a comprehensive sexual expression policy for residents and even has a dating service and a senior prom.

While nursing home residents having sexual relationships might seem like an unimportant story, it actually is an important elder law issue. Sexual relationships in nursing homes raise the possibility of abuse and false claims of abuse.

Having guidelines is a way to let staff know how to act when there are relationships and how to look out for signs of abuse. Nursing homes do not necessarily need to go as far as the one in Brooklyn, but having policies and guidelines is important.

In the coming years, more and more nursing homes will grapple with these issues and come up with a wide variety of policies.

The good news for seniors is that they should have options for choosing a facility that suits their needs.

Reference: New York Times (July 12, 2016) “Too Old for Sex? Not at This Nursing Home”

Does the Minimum Wage Affect Seniors?

The current political battle over raising the minimum wage does not necessarily seem like one that would be at the top The of the agendas of retired people. If anything, a big raise in wages could increase the costs of goods and services, which would harm those on fixed incomes.

However, the Paraprofessional Healthcare Institute reports that low employee compensation does harm seniors in a very specific way in that it hurts the quality of care in nursing homes staffed by underpaid nursing assistants.

The theory is that underpaid caregivers have stresses in their own lives that can lead to not performing as well on the job. It also makes it more difficult to retain good, experienced caregivers who leave for better paying employment.

McKnight's reported on this issue in "Underpaid nursing home aides lead to poor care, group says."

There are a couple of counter arguments to this. Most importantly, data suggests that quality of care in nursing homes is generally going up despite the low wages paid to nursing assistants. Another problem is that if wages in nursing homes are increased, it is not clear where the money will come from.

Nursing homes are already very expensive and reliant on Medicaid funding.

While it is debatable whether raising the minimum wage would help or harm seniors, what this shows is that elder law issues must be considered in a larger context.

Reference: McKnight's (April 12, 2016) "Underpaid nursing home aides lead to poor care, group says."

How Much Are Nursing Home Costs Rising?

A new study released by the Lincoln Financial Group reveals that on average the cost of semi-private and private nursing home care in the U.S. increased by 2% in 2014 and that increase is consistent with other recent years. McKnight's reported on this study in "Average cost of nursing home care rises 2% annually, Lincoln report shows."

The study also reveals that nursing home costs vary greatly by region of the country and metro area. Nursing home costs in Connecticut are almost triple the costs in Oklahoma, for example. The difference might be the result of real estate costs in different regions and differences in the price of labor.

To put the rising costs in perspective, overall inflation in the U.S. was 1.58% in 2014. Nursing home costs thus rose greater than inflation, but not alarmingly so. In fact, 2% is also the target inflation rate the Federal Reserve aims for in any given year.

Of course, in the future inflation in nursing home costs might not continue at the 2% rate. It depends on numerous external factors.

Nevertheless, it can generally be assumed that the costs will continue to rise over time along with the costs of most everything else.

The important take away for individuals is that when making retirement and estate plans, it should be assumed that prices will be greater than they currently are. The 2% per year increase in costs can serve as a useful guide for people as they make their plans.

Reference: McK

Nursing Homes Abandoning Residents

Bruce Anderson lived in a California nursing home for four years before he left the nursing home for a hospital due to pneumonia. When the hospital was ready to release him, the nursing home refused to take him back. 

Federal law requires states to conduct an administrative hearing in these cases, which California did. Anderson won the hearing. However, as Next Avenue reports in "The Agonizing Limbo of Abandoned Nursing Home Residents" Anderson was not readmitted to the nursing home after winning the administrative hearing. 

In California a different agency is supposed to enforce the rules than the agency that holds the hearing. The enforcement agency sometimes disagrees with the results of the hearing and refuses to enforce the decisions. 

Anderson is suing the state.

This is an unfortunate situation and it is not uncommon. Nursing homes are often eager to get rid of residents who require a lot of staff attention. The problem, however, is that these elderly people have nowhere else to go to receive care and must remain in hospitals when it is not medically necessary for them to do so. 

In many cases it is actually harmful to stay in the hospital. This also creates financial problems for hospitals, too. It can cost more to provide care for these patients than the government is willing to reimburse.

Reference: Next Avenue (March 4, 2016) "The Agonizing Limbo of Abandoned Nursing Home Residents"

 

New Nursing Home Quality Measurements

Anyone interested in information about the quality of a nursing home can go to Medicare's website and use the Nursing Home Compare system to look up detailed information about the nursing home, including whether it has received any penalties. A five star rating system makes it easy to quickly compare different nursing homes against each other.

Of course, the ratings are only as good as the information that goes into making them. 

McKnight's reports that the government will soon be adding six new measurements to the ratings in "6 new quality measures coming to Nursing Home Compare, Five-Star rating system." 

The new measurements include:

• Percentage of people staying less than 100 days who had an emergency room visit.
• Percentage of short stays who were sent home and not soon thereafter readmitted to another nursing home or hospital and who did not die within 30 days.
• Percentage of short stays who were hospitalized after admission.
• Percentage of short stays whose physical functioning and locomotion improved.
• Percentage of residents of over 100 days whose independent movement got worse.
• Percentage of long stays who were prescribed hypnotic or anti-anxiety medication.

The first five measurements will be phased into the ratings over the next nine months.

Reference: McKnight's (March 4, 2016) "6 new quality measures coming to Nursing Home Compare, Five-Star rating system."