Fong Law Group

Be Cautious of Generic Health Care Proxy Forms

Doctors, nurses, and hospital staff work hard to care for their patients when they are sick or hurt. However, even when a procedure is done to save a patient’s life, a hospital cannot act without patient consent. If a patient cannot speak for themselves and express their wishes, the hospital relies on what is known as a health care proxy form.

If you have ever been admitted to the hospital, you have likely been asked to sign a health care proxy form. Hospitals use proxy forms to obtain consent in advance from patients in case they become incapacitated and medical professionals need to administer medication, perform surgery, or otherwise treat the patient. However, the generic version used by most hospitals can fall short for many patients and may infringe upon their autonomy. Always be cautious when you sign a boilerplate document.

What Is a Health Care Proxy?

A health care proxy is a form that a patient uses to name an agent who will carry out their wishes regarding medical care if the patient cannot speak for themselves. Having a health care proxy specifically tailored to your needs can be important. For example, you can outline what kind of treatment you do — or do not want — if you become terminally ill or are in a coma; at the same time, you can indicate other wishes, such as whether you would want pain medication administered or your organs donated.

The agent only has the power to make decisions on the patient's behalf once a doctor confirms that the patient requires medical attention but cannot advocate for themselves. The agent's power ends when the patient can once again state their treatment preferences. Appointing an alternate agent is a good idea, too.

What Is the Problem with Signing a Generic Health Care Proxy?

A health care proxy is important because it instructs your agent to speak for you and, if well-written, it will give specific instructions about what medical treatments you want and which treatments you refuse. An estate plan is not complete unless it includes a health care proxy form.

The problem with relying on the generic health care proxy form the hospital provides is that, in some cases, these forms will not take your individual wishes into account. Every person treated at the emergency room or admitted into the hospital signs the same health care proxy form. Anything that could have a life-or-death consequence should be tailored to you and specifically address your needs.

If you have a health care proxy, inform the hospital staff so they can make the document a part of your medical record.

How Can I Complete My Own Health Care Proxy?

Part of creating an estate plan is having a health care proxy drafted. If you have not created an estate plan or health care proxy, contact your attorney to draft the estate planning documents that you need.

Miller Trusts Can Help You Qualify for Medicaid

Many seniors find themselves in need of Medicaid to pay for their long-term care but are surprised to learn that their modest monthly income may disqualify them. The reason for this is that Medicaid is a “means-tested” benefit. In other words, you must not have income exceeding certain thresholds in order to qualify and receive Medicaid benefits. For example, in New Jersey, the monthly income limit for nursing home or community-based services is $2,523 for individuals and $5,046 for married couples.

Medicaid expects all of an applicant’s monthly income, besides a monthly personal needs allowance and Medicare premiums, to go toward nursing home costs. So, what if you have more income and other expenses? A Miller Trust may help you resolve this dilemma.

A Miller Trust is a Medicaid planning tool that can assist you in meeting the income limits and qualifying for Medicaid. Unlike other planning tools, Miller Trusts do not have specific disability or age requirements.

How Does a Miller Trust Work?

If your income exceeds Medicaid’s income limit, you can deposit the amount of your excess income into a Miller Trust – also referred to as a “qualified income” trust. Once it is deposited into this trust, it is not counted as income by Medicaid. However, to qualify, a trust must be irrevocable, which means you cannot cancel or change it. Once you put money into the trust, you cannot get it back directly. However, the trust can pay certain expenses on your behalf.

A Miller Trust is a good option for any Medicaid applicant needing long-term care services, whether at home, in their community, or in a skilled nursing care facility. This trust is created by the applicant, a guardian, or a person with a properly drafted power of attorney. A trustee is chosen to manage the trust and the income deposited. Anyone other than the Medicaid applicant can serve as a trustee.

Once the trust is set up, the trustee establishes a bank account to receive excess income from the Medicaid applicant. The income can only be used for certain expenses. For example, it may be used to pay the personal needs allowance of an individual in a nursing home, Medicare premiums, bills not covered by Medicaid, or supplement costs of a nursing home.

Another requirement of a Miller Trust is that the applicant’s state Medicaid agency will be the beneficiary of any remaining funds in the trust upon the death of the Medicaid applicant. The amount the state receives is limited to the total value the state paid in long-term care on behalf of the applicant. Any amount remaining after this payment may go to a person the applicant chooses.

Medicaid Income Cap

You should be aware that not every state allows Miller Trusts as a method to qualify for Medicaid. Currently, only about 25 states, known as “income cap” states, permit it. Other states do not impose an income limit for nursing home care, and so there is no need for a Miller Trust in these locations. For example, in Massachusetts, you would pay all your income, minus certain deductions, to the facility, and Medicaid would pay the remaining cost.

Before creating a trust, it is important to speak with an elder law attorney to ensure this option is right for you. If you live in a state where this is not allowed, there may be other options, such as pooled income trusts, which serve a similar purpose.

For guidance in Medicaid planning, consult your attorney.

Are You Missing Out on Benefits? Identify the Programs Available to Seniors Like You

Older adults have access to hundreds of federal and state benefits programs. Many retirees meet the requirements for these aids, yet do not know they are eligible and miss opportunities to receive assistance. Others can feel overwhelmed by complex application processes.

BenefitsCheckUp, the National Council on Aging’s online resource, helps elders identify the federal and state assistance programs for which they are qualified. The database is free to access, and the National Council on Aging ensures personal information people enter into the website remains confidential.

The resource provides older people not only with individualized reports of the assistance programs that cover them, but also the details they may need on each program before applying, including contact information for the agencies administering the assistance.

How to Obtain an Eligibility Results Report

To get personalized Eligibility Results detailing the benefits programs to which you may apply, enter your information into the database on the BenefitsCheckUp website, starting with your ZIP code. Then select the programs that interest you, which offer support on any number of services, including:

• Health care and medication
• Food and nutrition
• Housing and utilities
• Aging in place and in-home care
• Income
• Disability services
• Long-term care, such as skilled nursing facilities
• Discounts and activities
• Tax help
• Crisis, legal, and general assistance
• Veterans’ programs

Once you enter details such as your date of birth and marital status, BenefitsCheckUp generates a report outlining the specific programs accessible to you, and identifies what other information each program requires.

The Eligibility Results reports have several user-friendly features:

• If you make errors filling in details or want to provide additional information, the website allows you to go back and revise your answers.
• After the website creates an individualized Eligibility Results report, you can save it as a PDF and email it to yourself or a loved one.

Family and Caregivers Can Use BenefitsCheckUp to Assist Their Loved Ones

Family members or caregivers of older adults can also use BenefitsCheckUp to help their loved ones learn about benefits programs. They can enter an individual’s information into the website on their behalf and get a report, which they can use to support their loved ones in applying for state or federal benefits.

This easy-to-use resource can help older adults and their families alleviate the stress associated with applying to state and federal benefits programs. Visit the BenefitsCheckUp website to use the tool.

Plan Ahead Before Seeking Nursing Home Care: Avoid Unnecessary Debt for You and Your Family

Many senior citizens may need the services of a nursing home or at-home care at some point in their life. You might assume that government assistance or health insurance will step in and cover the cost if you cannot afford these services. Unfortunately, neither health insurance nor Medicare covers long-term care. Because obtaining long-term care insurance can be very expensive, Medicaid could become your only option.

Medicaid coverage is not a given, however. If you have assets or recently transferred assets, Medicaid may determine you do not qualify for coverage until a certain amount of time has passed. If this happens, you and their family can face significant medical bills. If you cannot pay, nursing homes may take you to court to get reimbursed.

What steps can you take to avoid this? First, before applying for Medicaid, get a better understanding of the timelines in your state – known as lookback periods – that can affect your eligibility. Then you can engage in proper Medicaid or asset protection planning in advance of these timeframes. A good age to begin planning is around age 65, although everyone’s situation is different.

Individual states run Medicaid programs, and every state has different rules regarding Medicaid eligibility. These programs were designed as a payor of last resort — in other words, to qualify, you must meet strict requirements. There are two primary types of Medicaid benefits: home care and skilled nursing home care.

Lookback Periods

You must submit an application to your local Medicaid office to qualify for these benefits. As part of this process, the state will look at any money or property you may have transferred within a certain lookback period. In New York, for example, this period of time will soon be 30 months for home care and 60 months for skilled nursing care.

These lookback periods can have serious consequences. If you have not engaged in appropriate asset protection planning, you may not be able to qualify for home care or nursing home care for many months. The result is that many elderly individuals must then spend down their savings and liquidate their assets to pay privately for their home care before Medicaid starts covering anything. If a person no longer has resources and is subject to a disqualification penalty period, family members may have to step in and bear these costs on their own.

So, what can you do? The answer is to start planning as soon as is practical.

Options to Explore

Speaking with an elder law attorney can help you and your loved ones explore options available to avoid you or them being personally responsible for the costs of your care.

• Medicaid Asset Protection Trust — One common approach is placing assets in a Medicaid Asset Protection Trust. You may be able to use this to shelter various assets such as stock accounts, savings, a home with unprotected equity, and much more.
• Pooled Income Trust — Another option you may explore is contributing income that exceeds Medicaid allowances to a Pooled Income Trust. This can allow you to qualify for Medicaid while diverting excess income to a trust that pays qualified expenses on your behalf. This will enable you to benefit from the income and not spend it on things Medicaid could have otherwise covered.
• Spousal Refusal — Your spouse may also have options that can help you qualify for Medicaid. One such option includes exercising a right of spousal refusal — a process available in some states by which the income and assets of your spouse can be removed from consideration in your Medicaid eligibility analysis.

Finally, an attorney can help you understand if certain transfers are permissible under Medicaid rules without triggering a penalty period.

Without proper planning, individuals with assets and income exceeding specific state-set thresholds would have to spend this income and their assets on their care or exempt items before they can receive Medicaid benefits. For assistance in planning, consult with your attorney.

It Pays to Be a Smart Shopper When Buying a Medigap Insurance Policy

Medigap premiums for plans from insurance companies offering the same benefits vary widely, so it pays to be a smart shopper.

Federal law requires that each insurance company offers the same benefits for each of the Medigap plans lettered A through M, but each company sets its own premium rates.

A Medigap insurance company sets premiums in three ways:

• Community-rated, where the premiums are the same, regardless of age
• Issue or entry age-related, where premiums are cheaper if purchased at a younger age
• Attained-age-related, where premiums are based on your age at the time of purchase

When choosing a Medigap plan, compare the different benefits each plan offers and the price for each company’s plan. Consider your current health status, what your health care needs might be in the years to come, as well as your future health care budget.

Insurers will also consider the state and city where you live. The American Association for Medicare Supplement Insurance Price Index reports found the cost in 2022 of a Plan G policy, the most popular Medigap plan, was $99.24 per month in Dallas, Texas, versus $278.25 per month in New York City.

When shopping for a Medigap policy, get quotes from two or more insurance agents working for different insurance brokers. Every insurance broker may not represent all the insurers offering a plan in the state or city where you live.

It may take time to shop around, but the money you save can be worth it.

Keeping Your Emergency Contacts and Medical Information Updated for First Responders

If medical personnel are able to access your medical history during an emergency, it could mean the difference between life and death. But if, for example, you are injured, in shock, suffering from dementia, or are otherwise incapacitated, you may not be able to provide that information yourself.

There are several systems readily available to help make crucial contact and medical history information available to first responders. Consider taking the time to update your details with the following free tools:

• On Your Smartphone: Even when your smartphone is locked, you have options for inputting your emergency contacts as well as other vital information that could help save your life.
   
  • Medical ID for iPhones. If you are an iPhone user, take advantage of the preinstalled Health app to input details about your medical needs so that first responders will have the information they need in an emergency. To do this, open the Health app, choose Review Medical ID, and enter your information.
    
    You can include not only your designated emergency contacts, but also such details as your birthdate, any medical conditions or allergies, your blood type, and your organ donor status. You can then choose to make your Medical ID available on your iPhone’s lock screen for first responders.
    
    In addition, there is an option to share your Medical ID information automatically with a dispatcher, should you ever need to make an emergency call.
     
  • Emergency Information on Androids devices. Depending on your device, you may be able to find “Emergency Information” or “My Info” in your Settings, where you can enter your medical details and emergency contacts. Be sure to add anyone you wish to designate as an emergency contact into your Contacts app as well.
    
    In your Android Settings, you can also add your emergency contact information to your lock screen as a custom message.
     
  • In Case of Emergency (ICE) Contact. This program, which was originally established in 2004, encouraged people to list in their cell phone their “in case of emergency” contacts under the heading “ICE,” allowing paramedics or other medical personnel to know whom to contact in the event of an emergency. Today, there is also a free ICE app for smartphones, which allows you to send an instant message, including your GPS location, directly to your ICE contacts with the tap of a button if you are in an emergency situation. Learn more about ICE.
• The National Next of Kin Registry (NOKR). The NOKR is a free service that allows you to register yourself and your next of kin in the event of such situations as daily emergencies or natural disasters. The information you enter is not available to the public, but it is available to emergency service agencies registered with the NOKR. If you are in an accident, emergency services personnel would be able to search the website to find your next of kin and notify them about your condition. The NOKR stores emergency contact information for those across the U.S. as well as 87 other countries. You can register online, through U.S. mail, or via fax. Learn more about registering for the NOKR.

To get the most out of an emergency contact, you should make sure the person you choose as your emergency contact has agreed to act in this capacity, knows about any allergies or other factors that could affect your treatment, and knows whom to contact on your behalf.

The Powers and Responsibilities of Representative Payees

Do you have a friend or loved one who receives Social Security and is unable to manage her payments? If so, you can request that the Social Security Administration (SSA), the government agency that disburses Social Security, name you as the representative payee for that person.

Being a representative payee gives you the power and the responsibility to manage that money for your friend or loved one. (The Office of Personnel Management and the Railroad Retirement Agency also appoint representative payees, and the responsibilities are basically the same.)

As a representative payee, you only have the power to handle the Social Security benefit for your friend or loved one (the beneficiary) and not any other money or property for that person unless some other document or government agency appoints you to do so. 

It is important to remember that the check from the SSA is not yours; it belongs to the beneficiary. The beneficiary is supposed to get the benefit of the money. Your role includes performing four very important duties:

1. You must act only in the beneficiary’s best interest, which means the beneficiary’s money belongs only to them. You cannot pay yourself for managing their money, and you cannot borrow it or lend it to anyone else; those would be conflicts of interest, which you must avoid. You should also do your best to make sure the beneficiary does not get scammed or mistreated.
    
2. You must manage the beneficiary’s Social Security check carefully, which means you should make sure the beneficiary’s daily needs and any other foreseeable needs are met, bills are paid on time, and all taxes are paid.
    
3. You must keep the money from the Social Security check separate from your own money, which means you cannot keep the money in any kind of joint account or sign any contracts or leases for the beneficiary. If you have to open an account or sign anything for the beneficiary, sign “(beneficiary's name) by (your name), representative payee” so everyone knows you are acting on the beneficiary’s behalf.
    
4. You must keep good records of everything you do with the beneficiary’s money, which means keeping track of all money you spend for the beneficiary and keeping all receipts. Representative payees also have to file annual reports unless they are exempt. The following types of payees are now exempt from the annual accounting requirements: 

• Natural or adoptive parents or legal guardians of a minor child beneficiary who primarily reside in the same household as the child
• Natural or adoptive parents of a disabled adult beneficiary who primarily reside in the same household with the beneficiary
• Spouse of a beneficiary

Remember, there may be other people appointed to help the same beneficiary with other things. They have the same general four duties as you, and all of you must work together if that is in the beneficiary's best interest.

If you are not a family member and the beneficiary has family, you must keep family members informed about what you are doing for the beneficiary. This will reduce the chance that they will have problems with your actions. In the end, however, the decisions about the Social Security check are yours to make because you are responsible. You are the one who will get in trouble if something goes wrong. For example, if someone thinks you violated one of your four important duties, they can report you to the SSA. The SSA will investigate, and if it decides that you misused the beneficiary's money, it will make you replace what was lost out of your own pocket.

The SSA has created a Representative Payee Portal as a central gateway for individual representative payees with a my Social Security account to conduct their own business or manage direct deposit, wage reporting, and annual reporting for their beneficiaries.

If you have more questions about what it means to be a representative payee, check out www.ssa.gov/payee.

For more information, visit the SSA’s online guide for representative payees. 

When Is a Nursing Home Eviction Legal, and What Can I Do?

Nursing home evictions, or involuntary discharges or transfers, disrupt the lives of residents, leading to homelessness, separation from familial support systems, and loss of care. As federal law covers all federally funded nursing home residents, nursing home evictions are legal only in particular instances, such as:

• The nursing home can no longer provide for a resident's needs.
• The resident does not pay for care after "reasonable and appropriate notice," which varies by state.
• The resident no longer needs care.
• The resident jeopardizes the health or safety of other residents.
• The nursing home closes.

Causes of illegal nursing home evictions

Financial motives are a significant cause of illegal nursing home evictions. When residents can no longer pay for nursing home care, some nursing homes evict residents without providing sufficient notice and time to apply for Medicaid.

Additionally, some nursing homes discharge residents early to avoid financial risks. For instance, some nursing homes remove residents transitioning from higher-paying Medicare to lower-paying Medicaid.

Other nursing homes discharge residents prematurely, suspecting residents will not pay for their stays. Medicare covers the initial 20 days of care. After 20 days, residents are responsible for copayments. A 2019 study in the Journal of the American Medical Association Internal Medicine found that nursing homes more often discharged Medicare recipients on the final day of full coverage than before or after, suggesting that some nursing homes prioritize financial considerations over resident care.

"Hospital dumping," where individuals returning from hospitalizations may find their beds taken, is another illegal practice, according to the American Council on Aging. State laws require that nursing homes hold beds open for hospitalized residents for one to two weeks. Residents receiving Medicaid are also entitled to available Medicaid-certified beds.

Other nursing homes may attempt to remove residents they perceive as disruptive or challenging, such as individuals with dementia. These facilities claim that they cannot meet the resident’s needs as a pretense for evicting them. Yet once nursing homes open their doors to residents, they have already determined they can meet residents' needs. According to the Centers for Medicaid and Medicare Services, discharging residents because nursing homes cannot provide for their needs should not be a common practice.

Dynamics between residents and nursing homes

Residents facing involuntary discharges or transfers from nursing homes may be hesitant to speak up and may not know their rights under federal law. They may feel pressure to accept discharges, even when they are not ready to go home.

If you or your loved one are facing a nursing home eviction, keep the following in mind:

• Nursing homes must provide 30-day notices of discharges. Residents do not need to depart immediately.
• In addition, residents have the right to appeal a release. They may remain in the nursing home during the appeal process unless doing so would endanger the health and safety of themselves or others.
• Nursing homes claiming to be unable to provide for a resident's needs must document why they can no longer assist the resident. Similarly, nursing homes must tell residents their reasons for discharging residents and provide these reasons in writing. Residents may request explanations of their discharges.
• A long-term care ombudsman is an official who advocates for people in nursing homes. You may contact your ombudsman through the Department of Aging in your state for assistance with nursing home evictions.  
• The national nonprofit Justice in Aging provides a useful resource on resolving common problems with nursing homes.
• For further insight and support, be sure to consult your attorney as well.

Stop Using Unsafe Portable Bed Rails Immediately, National Safety Commission Warns

An advisory issued in June warns people against using a series of adult portable bed rail models after at least three people — including one in a nursing home and another in an assisted living facility — were entangled in them and died of asphyxia.

The U.S. Consumer Product Safety Commission named the following 10 models of Mobility Transfer Systems adult portable bed rails in which it says users may become trapped, resulting in serious injury or death:

• Freedom Grip (model 501)
• Freedom Grip Plus (model 502)
• Freedom Grip Travel (model 505)
• Reversible Slant Rail (model 600)
• Transfer Handle (model 2025)
• Easy Adjustable (model 2500)
• 30-Inch Security Bed Rail, single-sided (model 5075)
• 30-Inch Security Bed Rail – Extra Tall, single-sided (model 5075T)
• 30-Inch Security Bed Rail, double-sided (model 5085)
• 30-Inch Security Bed Rail – Extra Tall, double-sided (model 5085T)

The Commission’s advisory “urges consumers to immediately stop use, disassemble, and dispose of” these bed rails, which have been on the market since 1992 and available through such online retailers as Walmart.com and Amazon.com.

Users can report any incidents related to these rails at www.SaferProducts.gov.

Some Social Security Beneficiaries Can Get Retroactive Payments -- But at a Cost

If you need a lot of cash on hand upon retirement, Social Security offers a lump-sum payment option that’s worth six months of benefits. However, it comes at a cost. It is important to understand the details before agreeing to the payment.

If you have waited beyond your full retirement age (66 for those born between 1943 and 1954) to begin collecting Social Security benefits, you have the option of asking for back payments. The maximum that Social Security offers is six months’ worth of retroactive payments in a lump sum. The downside is that by taking the lump sum, your retirement date and the amount of your monthly benefit are rolled back six months. 

When you delay taking retirement beyond your full retirement age, you amass “delayed retirement credits” that increase your benefits by 8 percent for every year that you wait, over and above annual inflation adjustments. By taking the lump-sum payment, you lose the delayed credits that you had accumulated over the previous six months, so your monthly benefit will be lower than if you did not take the lump sum -- forever.  So, for example, if by taking the six months of retroactive benefits your regular monthly benefit is reduced by $150 and you live another 25 years, you're foregoing $45,000 over that span.  

Whether you should take the lump sum payment depends on a number of factors, including your life expectancy, your spouse’s needs, and what you will do with the new money. Taking the lump-sum payment makes more sense if your life expectancy is shorter. In this case, the immediate cash infusion will be more beneficial than bigger monthly payments. However, if you are married and are the higher earner, you will want to consider your spouse’s needs. If you die, your spouse will receive spousal benefits equal to the monthly amount of your benefits. The higher your benefit, the more your spouse will receive. 

You also need to consider what you will do with the lump-sum payment. If you are paying off high-interest debt or investing in something with a good rate of return, the lump sum might be better than having the higher monthly payment.