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Elder Law Update
Georgia Edition

Issue Three
August 2007
In This Issue
Disability Trusts and Medicaid: A Basic Intro
Summer and the Elderly: Keep Cool
Evacuation Planning for Older Adults Pt II
Signing Up For Social Security and Pensions: PROVE IT!
This Month's Favorite Links
Check Them Out!
ElderLawAnswers
(A Great Q & A Resource)

Special Needs Answers
(Good source of info on Special Needs Planning by the Academy of Special Needs Planners)

Come across an interesting link?  Share it with me.
PLEASE VISIT MASON LAW
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Dear Bob,RAM Casual

Welcome to Issue Number 3 of Elder Law Update. If you have recently joined, you can read our two "back issues" by going HERE.

July has been hot and busy. August will be hotter and busier. Mason Law, PC is into the seventh month of the Savannah office, and we've been overwhelmed with the interest in our services.

The biggest area of interest seems to be Special Needs Trust planning for families with "special needs" loved ones. In order to help a bit, I'll run a brief "primer" on these important tools below.

On the topic of Special Needs Planning:  I've highlighted a few links to sites maintained by the Academy of Special Needs Planners, a new organization that is the brainchild of noted elder law attorney Harry Margolis. Harry, based out of Boston, is something of a mentor to many of us in this 'special' area of the law. The sites are packed full of useful information.

For elder law and special needs attorneys like me, the academy provides an excellent opportunity to "brain storm" with colleagues from around the country. And, of course, it helps me to "stay on top of things" for my clients.

Further In This Issue

Speaking of Hot Summers, Dr. Beth Hodges has an interesting short article on cautions every senior needs to exercise in the heat. Her article appears just below. For those of you who are medical doctors or have access to Medical Economics (a national journal for physician practice management), Beth and her husband/partner Cisco Hodges, MD are the featured story in the July issue . . . they made the cover!

And for many readers, when not broiling under the sun some summer activity may involve dodging hurricanes. Geriatric Care Manager Barbara Dunn continues her three part series on hurricane (and other emergency) planning for seniors with episode 2. Barbara has a wealth of knowledge in this area and, in addition to running her own practice, is Chair of the Disaster Services Committee for the Savannah Chapter of the Red Cross.

Finally, resident Social Security expert Warren Coble gives us some timely pointers as to what to expect when applying for Social Security benefits . . . and what you'd better be ready to prove.

I hope you enjoy this issue. PLEASE pass it on. You can do so by clicking HERE or at the bottom of this newsletter.


Bob Mason
Certified Elder Law Attorney

Certified by the National Elder Law Foundation, recognized by the American Bar Association as the certifying entity for specialization in  Elder Law.

Disability Trusts and Medicaid 

You may have heard that Congress has imposed drastic restrictions on long term care assistance under Medicaid. Don't lose hope. Plenty of options remain for married couples, and many remain for disabled individuals and their families.

Downs 1 The parents of a disabled child must ensure that the child will receive adequate financial protection, probably for the child's entire lifetime, while at the same time providing equitably for other family members. Maybe a parent is worrying about her own nursing home care but wants to insure her assets can be used for her disabled child.

In many cases access to government entitlement benefits -- whether Supplemental Security Income, state supplemental assistance programs, or Medicaid - is critical. How does one remain eligible for these valuable resources without first becoming impoverished?

An inheritance left directly to a disabled child will soon be gone. If a disabled individual comes into a "windfall", such as a personal injury settlement, those assets, too, will quickly disappear.

Sadly, many parents (with inadequate or no advice) simply leave everything to the "non-disabled" children with the hope those children will "look after" their disabled sibling. Unfortunately, greed, divorce, lawsuits or carelessness can throw this plan awry.

A "special needs trust" might be a great alternative. Because someone other than the beneficiary provides the trust assets, and the trust holds the assets for "supplemental needs" only, the trust should not affect the disabled individual's eligibility for entitlement benefits or be accessible to the individual's creditors, including the government.

A "special needs trust" will supplement, not reduce or replace, entitlement benefits that may be available to the disabled individual. If no benefits are available, the trust assets stand ready to help. If the available benefits do not provide adequately for the beneficiary's needs, the trust assets will fill in that gap. Even if the available benefits adequately cover material needs, the trust assets may be used to enrich the beneficiary's quality of life without jeopardizing the much-needed benefits. Finally, to the extent that the assets are not used during the beneficiary's lifetime, they may pass to other family members.

What happens, however, if the disabled individual has assets, but these are inadequate to meet his or her needs? What if a will or a trust names the individual without providing for a trust in the event of disability? And what if the individual is about to receive a settlement or award in a personal injury lawsuit?

By placing his or her property in another kind of special needs trust, a so-called "OBRA '93 Trust" or "payback" trust, the individual will remain eligible for many important benefits, including Medicaid. The catch is that upon the beneficiary's death, the Medicaid benefits must be repaid, with only the balance passing to other family members. During the individual's lifetime, however, the difference between an OBRA '93 Trust and no trust can be the difference between having training and educational opportunities, a computer, music, regular outings and a vacation, and living a life of poverty or dependency.

The requirements of an OBRA '93 Trust are simple.  It must be established for the lifetime benefit of someone under age 65 who is disabled or blind. It must also provide for pay-back of Medicaid benefits paid by the state. In addition, only parents, grandparents, courts, or "guardians", not the disabled individual directly, may establish a pay-back trust.

When deciding to establish an OBRA '93 trust, the disabled beneficiary's specific needs
Downs 1 and the effect of the trust on the individual's benefits must be taken into account. Also, in the context of a personal injury settlement, many common settlement options (such as annuities) may render an OBRA '93 trust impossible. Because of this, early planning is a must when damages for a personal injury are involved.

For the trusts I've just described, administration can be difficult.  Also, for people over 65, or for people with no parents, grandparents, or guardians available to establish a trust, these trusts may be unavailable.  In that case, a community or pooled trust may be the answer. They work very much like pay-back trusts, but are administered by non-profit community-based trustees and are "pooled" with the trusts of other disabled beneficiaries. When the beneficiary dies, the assets either "pay-back" Medicaid or can be retained in the trust to provide for other beneficiaries in the community.

You can read a bit more about SNTs on the Mason Law website by clicking
HERE.

This is an exceedingly complex area of the law. I've tried to simplify it. Whatever you do, get good advice!

Bob Mason

 
Barbara DunnSUMMER AND THE ELDERLY: KEEPING IT COOL
-Beth Hodges, MD

Summer is full of long days, fun in the sun, and social events galore, but it can be a particularly hazardous time for our elderly. Here are a few tips for keeping Grandma safe:
  • Avoid being outside in the worst heat of the day (usually 10am-4pm) Older folks' internal thermostats can't regulate their body temperature as easily as ours can, so they are more sensitive to heat exhaustion or heat stroke. Their skin is also thinner and they can burn more easily.
  • Make sure elderly relatives are drinking enough water, especially if they are on blood pressure medication. Not only can they become dehydrated very easily, but early stages of the problem can cause their blood pressure to drop when they stand, putting them at risk for falls.
  • Ask them when they last had a tetanus booster. An adult needs a tetanus booster every 10 years, or sooner if he gets a bad skin injury. Since many elderly do not go in for regular physicals, their tetanus immunity can wane, putting them at risk for the infection. A tetanus infection is usually fatal, and those that live through it can be neurologically devastated. We do have tetanus in this area. Several cases are reported each year, most of which are in the elderly.
  • Try to find out if they are taking their medications as directed. Late summer is when many of our elderly hit their "donut hole" in terms of prescription coverage. Unfortunately, quite a few of them just quietly stop taking their medications until January and the start of a new coverage year. Many hospitalizations and even deaths in the elderly come as a consequence of this.
  • Encourage the use of insect repellent when outside. Mosquitoes and ticks can carry diseases that are particularly dangerous to the elderly.

Summer is a great season. Let's keep it a safe one for our elder population.

Barbara Dunn EVACUATION PLANNING FOR OLDER ADULTS
-Barbara Dunn, MSN

Editor's note: This is the second in a three part series telling you how to begin devising an emergency evacuation plan for the elderly.

In the last issue of Elder Law Update I stressed the absolute importance of starting on a written evacuation plan for older loved ones. I also promised to discuss some specific areas you must consider. These may seem obvious, but you must think through and plan for each.

Mobility Needs

Label every single piece of durable medical equipment (DME) no matter how recognizable you think it is. Walkers and canes packed into a van or bus begin to look the same.

Is an electric scooter needed? Be sure to plan for an extra battery. A dead battery is useless, whether going by private or public transportation. Does the vehicle have the means to transport the scooter? Too often families face having to leave the scooter behind. If a wheelchair is necessary, will it fit in the trunk or back seat and who has the upper body strength to load it?

Planning to take mom or dad home with you? If so, are there mobility barriers where you are going? How will your loved one bathe, negotiate the front stairs, or fit the wheel chair through the bathroom door? Do the bathrooms have grab bars and are there scatter rugs that need to come up?

Communication Needs

Eyeglasses and hearing aids can be a problem during an evacuation. Be sure to plan for an extra pair of eyeglasses along with the prescription. Even with a prescription, replacing broken or missing glasses hundreds of miles from home is time consuming and difficult at best. Don't forget to label the glasses in some way. Does your loved one wear a hearing aid? Take along plenty of batteries-you can't predict how long your loved one will be gone.

Medication Needs

Have a current, accurate, list of all medications. Keep it updated. During a hurricane evacuation is not a good time to be asking "Is Dad really on this medication or was it discontinued at the last visit?"

Have a current list of your loved one's medical providers. Even then, your loved one's primary physician will likely evacuate too and may not be reachable for medication issues. What plans do you have for a back up provider? Consider one of the web based vehicles that make medical records available no matter where you are (www.medicalsummary.com is one example). If medications are running low, will the pharmacy plan permit an early, emergency, refill?  Some will, some will not. Ask your pharmacy, and then put it in your plan.

Next month, in the last installment of this series, I'll point out a few very important and overlooked items . . . and I'll point you to some great resources.


Barbara Dunn, MSN, is owner of Elder Care of Coastal Georgia, as well as Chair of the Disaster Services Committee of the Savannah Chapter of the American Red Cross. You may email comments and questions to Barbara by clicking
HERE.
 
Warren Coble SIGNING UP FOR SOCIAL SECURITY AND PENSIONS
Be Ready To PROVE IT!
-Warren Coble

Signing up for Social Security requires proof, or documentation, regardless of the type of benefit one is applying for. Generally, either original documents or documents certified by the custodian of the original record (Register of Deeds, Clerk of Court, etc.) are required.

Documentation for Retirement Benefits usually includes proof of age (birth certificate before age 5), military service (DD214 showing active duty dates) earnings (W2 form for the year prior to filing), and direct deposit information.  Additionally, a complete marital history (name of spouse, Social Security number if known, age or birth date of spouse, and beginning and ending dates of marriage, where the marriage began and ended, and if the spouse is deceased) is needed.  Proof (marriage license, divorce decree, etc.) of the marital history is not required for retirement benefits.  However when a spouse is applying for spousal benefits and survivor benefits, proof of the marital history is required.

For Disability Benefits, the above information is also required, in addition to documentation of the disabled person's medicines, medical condition and treatment history, work history, and educational history.  While helpful, actual medical records are not required.  The Disability Determination Service will obtain the medical records.  However, providing the actual copies of the medical records at the time of application does speed up the disability process. 

Further information regarding documentation and proof requirements can be found on Social Security's website, WWW.SSA.GOV or by calling SSA's National toll-free number, 1-800-772-1213.

Social Security expert Warren Coble welcomes your questions regarding Medicare, Social Security and Senior Life in general! Email Warren by clicking HERE.
The Usual Disclaimer: This newsletter is for general information only. Please do not rely on anything you read in this email as definitive legal advice applicable to you. All situations are different, including yours. Nothing you read in this newsletter is a suitable substitute for professional advice you may receive from your attorney, your accountant, or your tax advisor.

All contents copyrighted 2007 by Mason Law, PC. Contents may be republished with written permission of Mason Law, PC (which permission will usually be given!).
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