A Personal Care Agreement is a legal contract for service to be provided between a caregiver and a care recipient.  This contract may be called a Caregiver Agreement or Personal Services Agreement, but they all mean that there is an employer-employee relationship between the two individuals.

What makes this agreement unique is that it is often used between relatives, for example, a parent and child.  Let’s take a real world example:

Bill and Mary Jones are a married couple and they have two children, Susan and John.  Bill and Mary live in a single family home in Anne Arundel County, Maryland.  Bill has Alzheimer’s and is in need of 24/7 supervision and assistance with activities of daily living.  Mary has Parkinson’s and is also in need of assistance with activities of daily living.  Susan and John have been taking turns caring for their parents for a few months now and it would appear that it would be better if Susan moved in with Bill and Mary and continued to take care of them. 

Susan was employed full-time, but had to stop in order to take care of Mom and Dad.  John is married with two kids and has a full-time job.  If Susan moves in with Mom and Dad, she will care for them in the home and they won’t have to be transferred to an Assisted Living Facility or Nursing Home, at least for the time being.

The Personal Care Agreement will accomplish a number of goals.  First, Mom and Dad will remain in the home and be cared for by their daughter.  This will alleviate the need to transfer them to a facility or bring in a stranger as caregiver.  Mom and Dad will pay Susan for the service of taking care of them.  The “facility” for the purpose of the Agreement, is their home.  The Agreement will be for a monthly fee.  This fee should be based on fair market value care in the area.  So, Susan will now have an income which she has to report, but since she had to give up her job to take care of Mom and Dad, this is a trade off she is willing to make.

The type of care or services are generally, cleaning, food preparation, medication management, transportation, assistance with dressing, bathing, toileting, and essentially providing a safe and clean environment for them to spend the rest of their lives in, which Susan was already doing.

The Personal Care Agreement must be in writing and Bill and Mary must pay Susan monthly for her services.  It is best to have an experienced attorney prepare this Agreement to ensure that it will meet all the legal requirements.  Finally, the payments to Susan will not be seen as gifts made to Susan would Bill and/or Mary ever have to apply for Medical Assistance (Medicaid).

If you or a loved one is interested in discussing a Personal Care Agreement, please call to schedule an elder law consultation with one of our attorneys.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  “Personal Care Agreements” by Attorney Paula M. Mattson-Sarli

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  “Twenty Years of Estate Planning” by Attorney Colleen Sinclair Prosser

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  Make sure to tune in to WNAV Radio on 1430 AM or 99.9 FM on Tuesday mornings at 8:50 a.m.  for YOUR ESTATE MATTERS!  Attorneys Colleen Sinclair Prosser, Nicole Livingston and Paula M. Mattson-Sarli relate cutting edge estate planning information.  The topic tomorrow is “20 Years of Estate Planning” by Attorney Colleen Sinclair Prosser.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

When setting up an estate plan there are three very important health care documents that I recommend to my clients.

The first document is a Health Care Power of Attorney.  This document designates the health care agent (the person you choose to act on your behalf) to make health care decisions for you when you are not able to communicate.  These decisions include reviewing medical records, speaking to doctors and nurses, employing health care providers, authority to ride in an ambulance, and the ability to visit you in the hospital.

The second document is a Living Will.  Some people call this the “pull the plug” document.  I call it the “pull the plug or don’t pull the plug” document.   Once you inform your health care agent of your wishes regarding your end of life treatment, your living will, along with the health care power of attorney, permits your agent to carry out your wishes. These decisions may include directions to your health care agent as to what medical procedures, i.e. medication for pain, nutrition and hydration by tubes, you want when you are at the end of your life. Also included in your living will is your decision regarding organ donation.  You are the one who states these decisions in your Living Will and your health care agent will carry them out.

The third document is an authorization to release medical information form.  Commonly referred to as a HIPAA form, this document allows the people that you designate to access your medical records.  This document is important if you are in the hospital or are unable to move about.  Your representative will be able to fill prescriptions for you, pick up important medical documents and review you medical records.

Why is it important to put your health care wishes in writing?  To provide direction at what often is a highly emotional time, and to take the mystery out of the equation and alleviate conflict among those you love and those who love you.

It is advisable to seek the advice of a qualified estate planning attorney to make sure your health care directives work in the manner that you choose.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  What is a look-back period?   When you file an application for Long Term Care Medical Assistance, you are required to provide five years of financial statements documenting transactions in your accounts.  You may also provide five years of tax forms.  The purpose is to determine whether or not you gave away assets during this time frame in contemplation of filing an application for Medical Assistance.  In other words, have you gifted any assets with the intention of impoverishing yourself to qualify for Medical Assistance?

There are several different ways to gift assets.  The simplest way is to gift cash.  When the state agency is reviewing your financial records, a cash withdrawal from an ATM or an over-the-counter cash transaction is questioned.  This could be a gift.  You need to prove that you regularly withdraw the same amount of cash each month as part of your normal routine.  Many adults do not use check cards or credit cards and this may be opening you up to a higher level of scrutiny if you need to file a Medicaid application.

You may need to prove that you did not gift the cash by providing receipts for goods and services.  It is probably good practice for anyone over 65 years of age to keep receipts, especially for large purchases with cash, and keep a detailed accounting for at least five years of financial transactions.

Another way to gift is to add someone’s name to an account or your real estate.  When you do this, you have made a gift for Medicaid purposes and are subject to the five year look-back period.

If you file an application for Medical Assistance during this five year look-back period, you will be penalized.  The penalty is one month of ineligibility for Medicaid for every $6,800 you transferred.  The penalty doesn’t start until you are in a nursing home, apply for Medicaid, and are otherwise eligible.  This means you are qualified for Medical Assistance except for this gift.

Since there are other reasons you may not want to add someone to your accounts or your house, you should meet with a qualified estate planning and elder law attorney before you make any final decisions to take steps to file for Long Term Care Medical Assistance.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  “Gifting and Medicaid” by Attorney Nicole Livingston

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

There is a significant difference in the time required by law to process a Medicaid application and the actual time it takes to do so.  The Medicaid program is not just for the elderly, but also for low-income and disabled individuals.

A recent class-action lawsuit accuses the Maryland Department of Human Resources of breaking state law by taking up to a year to process Medicaid applications. The lawsuit claims to represent 10,000 disabled adults and was filed in mid-January of this year, in Baltimore Circuit Court seeking to force the department to make a decision on Medicaid applications within 60 days as required by law.

Many applicants have health problems, some of which are life threatening and are unable to obtain medical treatment outside of a hospital setting, until the application is processed and approved.  Some individuals cannot receive out-patient critical care and prescription drugs.

According to the state’s own report, as of December 31, 2012 there were 20,007 pending applications for MA-ABD statewide, meaning the state still had not processed and determined eligibility on these cases.  Of the pending cases, 9,940, almost half, were categorized as untimely due to “agency delay.”  Throughout all of 2012, the number of untimely pending cases never dropped below 8,300, indicating a severe and chronic backlog.  As cited in http://www.publicjustice.org/news/press/385 a Public Justice press release.

For those in need of long-term care assistance through Medicaid, they may be in the Nursing Home for six to eight months before the application is processed.  This can be difficult for the families and for the Skilled Nursing Facilities as it puts pressure on them to have paying customers. Legislation was introduced seeking, similarly to the current law suit, simply to have the department make determinations within the legal time limits prescribed by law.   The measure was held with the understanding that the department “was working on the problem.”   Let’s hope that this is the truth.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  The presentation establishes the necessary components of an effective estate plan. The seminar is presented in a case study format profiling the life of Bill and Mary Jones. Several scenarios are used to relay the impact of estate planning issues relating to probate, disability due to incompetence, protection of government benefits for special needs loved ones, second marriages, unmarried couples, minimization of federal estate tax and preserving the family legacy. Wills, living trusts, powers of attorney and health care directives are all represented in the presentation, as well as long term care and Medicaid planning. At its conclusion, the audience will have a clear understanding of their estate planning options and be equipped to make the choices needed for themselves and their loved ones. You won’t want to miss this seminar – it’s informative and easy-to-understand!TO RESERVE YOUR SEATS AND FOR DATES, TIME AND LOCATION VISIT  http://www.sinclairprosserlaw.com/local/estate-planning-seminars.aspx

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.

  For those of you who have gone to the Emergency Room (ER) or taken your parent to the ER for treatment after a fall or episode, this is important information, especially if you or your loved one is on Medicare.

There is a lot of misinformation or partial information floating around about whether Medicare pays for a stay in a Nursing Home for rehabilitation.   Medicare will pay for the first 20 days in a Skilled Nursing Facility if you are transferred there from a hospital after being admitted for three days.  There is also a requirement that you show improvement at the facility for Medicare to pay.

The three day requirement can lead to confusion and misunderstanding about who pays for the care.  Sometimes patients are in a hospital room after going to the Emergency Department receiving meals and they think they are actually admitted to the hospital, when in fact they are only under observation.  It is important that you ask the hospital staff if you are actually admitted to make sure the three day requirement is met.  Currently the hospital has no obligation to notify you of this status.

Senate Bill 0195 proposes to require a hospital, under specified circumstances, to provide notice to a patient of the patient’s “outpatient” status, the billing implications of the outpatient status, and the impact of the outpatient status on the patient’s eligibility for Medicare rehabilitation services; and to also require the Department of Health and Mental Hygiene to adopt by regulation standard language for a specified written notice.

This is a serious problem with our current system and we hope this legislation will address these issues.  If you don’t have to pay for the first 20 days, that is more money in your pocket.

SinclairProsser Law, LLC is a member of the American Academy of Estate Planning Attorneys.