Legal and Financial Considerations for Alzheimer s disease: What You Need to Know Right Now Our Speaker Claire E. Lewis Elder Law Attorney Indianapolis, IN Claire E. Lewis Law Office of Claire E. Lewis 115 N. Girls School Rd. Indianapolis, IN 46214 (317) 484-8115 phone (317) 484-8110 fax www.clairelewis.net 1
Is it too late for legal documents? Does a diagnosis of Alzheimer s disease mean it s too late to execute legal documents? Medical vs. Legal capacity What is a Power of Attorney? Power of Attorney IC 30-5-1 Indiana 755 ILCS 45/ Illinois KRS 382.370 Kentucky Who should have a POA Over 18 Single Married Disabled In other words, just about everyone! 2
Durable Power of Attorney THEY SURVIVE YOUR INCAPACITY UNLESS YOU STATE OTHERWISE IN THE DOCUMENT. Persons named a single AIF with successors multiple independent AIFs multiple joint AIFs EFFECTIVE NOW OR SPRINGING? This Power of Attorney (select one option and initial): shall become effective immediately following its execution. shall become effective upon my incapacity to manage my own affairs as certified in writing by my attending physician. 3
Gift and Trust Powers General authority with respect to gift transactions General authority with respect to estate transactions including the creation of any trust or trusts, either irrevocable or revocable, including, but not limited to, a Qualified Income ("Miller") trust Special Public Benefits Power General authority to apply for public benefits of any kind, to represent my interests in obtaining and maintaining benefits in a Medicaid application or redetermination process. Personal Care Power General authority with respect to personal care management and specifically, the authority to take any steps necessary for maintaining my customary standard of living including assisting with the operation of my household, providing personal and health care management for me whether that entails the provision of direct care or the hiring of others (including family members) to assist in my personal and health care management. 4
WHO CAN CONSENT TO YOUR HEALTH CARE EVEN WITHOUT A DOCUMENT? Priority Categories Appointed health care surrogate/ representative top priority (IL, IN, KY) Guardian of the Person (all 3 states) Priority Categories Spouse (IN, IL, KY) Adult children (all 3 states) Parent (all 3 states) Adult siblings (IN, IL); nearest living relative (KY) Grandparent (IN) Adult grandchildren (IN, IL) Close friend (IN, IL) 5
Health Care Proxies Indiana: Illinois: Appointment of Health Care Representative IC 16-36-1 Indiana Health Care POA IC 30-5-5-16 and IC 30-5-5-17 Health Care Surrogate Act 755 ILCS 40/ Kentucky Health Care Surrogate Act KRS 311.631 Powers Provide care Withhold care Withdraw care Access medical records Health Care Proxy Documents Second marriages with many children Single persons without children Parent who would like to avoid conflict among his/her children 6
Living Wills Indiana: Living Will and Life Prolonging Procedures Declaration IC 16-36-4 Illinois: Living Will Act 755 ILCS 35/ Kentucky: Living Will KRS 311.625 Typical triggers for Living Will Terminal condition certified by physician (IN, IL) Death is imminent Effort to sustain life is futile. Pros & Cons of Living Wills Pros: Provides psychological comfort Open door to discussion Between Patient and Doctor Between Patient and Family 7
Pros & Cons of Living Wills Cons: Rarely triggered when is it hopeless? Vague (by necessity?) Often executed years before need arises People rarely travel with their planning documents What happens when you call 911? POST/POLST/MOST Indiana: Physicians Orders for Scope of Treatment - POST Illinois: Practitioner Orders for Life Sustaining Treatment POLST Kentucky: Medical Orders for Scope of Treatment - MOST POST/POLST/MOST Communication tool written by and for health care providers. Form, not advance directive = medical order form documenting patient treatment preference More specificity (antibiotics,cpr, artificial nutrition, etc.; more thoughtful process 8
Who can have a POST/POLST/MOST? Qualified Persons who have: An advanced chronic progressive illness; An advanced chronic progressive frailty; Terminal condition; or Unlikely to benefit from CPR. Who signs the form? Requires treating physician signature to execute (other health care providers may be allowed to sign the form. Also requires signature of patient or representative How does the POST/POLST/MOST work? Form is property of patient Orders legally valid in all setting Patient can change his/her mind Re-evaluate when condition changes 9
POST vs. Living Wills POST Paradigm Living Wills Population: Advanced progressive illness All adults Timeframe: Current care/ current Future care/ future condition conditions Where completed: In medical setting In any setting Resulting product: Medical orders Advance directive Surrogate role: Can consent if Cannot do patient lacks capacity Portability: Provider responsibility Patient/family responsibility Periodic review: Provider responsibility Patient/family responsibility 28 Out of Hospital DNR Indiana: Declarant must be a qualified person. State-prescribed form: Out of Hospital DNR Declaration Illinois: Uses POLST to address Kentucky: State-prescribed DNR form GUARDIANSHIP Guardianship: provides protection when it s too late to execute legal documents. A guardian is someone appointed by a court to make decisions for an incapacitated person. 10
Estate Planning Last Will & Testament Revocable Trust Special Needs Trust TOD/POD WILLS & TRUSTS Everyone should have at least a simple Last Will & Testament Revocable Living Trusts: Tax minimization or avoidance Probate avoidance The subtle exploitation of our older & disabled adults BEWARE TRUST MILLS FREE LUNCH OR DINNER TRUST SEMINARS HOME SOLICITATIONS 11
Supplemental Needs Trusts Should be considered if it is likely that one member of a married couple will need long term care. Addresses what happens if the well spouse is the first to die. Pooled Trusts Should be considered when assisting persons who want to provide for a disabled person. Indiana: ARC of Indiana and SWIRCA Illinois: Illinois Disability Pooled Trust, Life s Plan Pooled Trust Kentucky: Kentucky Pooled Trust, Life Plan of Kentucky TOD/POD Designations TOD = Transfer on Death (Illinois & Indiana allow transfer on death deeds for real estate.) POD = Payable on Death 12
PAYING FOR LONG-TERM CARE Medicare Nursing Home Insurance Private Payments Medicaid Veterans Special Pension Benefit (Aid & Attendance/ Housebound) Veterans Benefits Beware the free Veterans Benefits services from the Red, White, and Blue pamphlet people. If they ultimately are selling you a product (such as an irrevocable trust or annuity), it is NOT a free service! MEDICARE Three Days Hospital Stay Skilled Nursing Care 20 Days Coverage 80 Days Co-Payment - $167.50 in 2018 No Financial Requirements 13
MEDICAID Single Nursing Home Resident Countable Resources $2,000 First of Month Income Goes to Pay for Care except for Personal Needs Allowance Cost of health care premiums MEDICAID Married Couples No More Divorce or Bankruptcy MCCA: spousal impoverishment protections since 9/30/89 EXEMPT ASSETS: Varies State-to-State Home Automobile Prepaid Funeral Arrangements Retirement Accounts of non- Medicaid spouse 14
Countable Assets Bank Accounts Investment Accounts Cash Retirement Accounts of Medicaid applicant Transfers of Assets Many misconceptions about the gift rules. Not all gifts are subject to penalty Beware charitable gifting & church tithing Beware the IRS exclusion gift of $15,000 per year per person You can t just get everything out of Mom s name to make her eligible for Medicaid! What is the lookback period? The lookback is simply a question: Have you made any gifts in the last five years? If the answer is yes, there may be a penalty period: Penalty runs from Date of Institutionalization Otherwise Medicaid eligible 15
TRANSFER PENALTY Formula for determining penalty varies from state to state. Amount Transferred Average Cost of Nursing Home Care = length of penalty (in many states) Annuities: the Problem Children of the Medicaid World Very harsh rules State must be named as primary or contingent beneficiary for medical expenses paid for an individual or spouse or a transfer has been made. Planning strategies Gifting? Personal Services Agreements? Trusts? 16
Resources Helpline: 800.272.3900 ALZ.org Support Groups Education Programs 49 Resources ALZWebinars.org ALZPhonePrograms.org 50 Thank You 51 17
Thank You Questions? 18