New Resource Available for Seniors and Their Families

Seniors now have a new resource to help them age successfully. Attorney David Wingate, CSA, with the Law Office of David Wingate, PC, recently completed a comprehensive course through the Society of Certified Senior Advisors (SCSA) and earned the designation of Certified Senior Advisor (CSA). SCSA is an international organization that has trained more than 20,000 professionals to meet the changing needs of a growing senior population, Wingate says

“The health, financial and social needs of seniors are different and more complicated than those of any other age group. SCSA keeps professionals from awide variety of fields abreast of all these issues by providing education, training, support and communication resources to those of us dedicated to serving seniors,”

The explosion in growth of the senior population is one of the most important demographic developments of the 21^st century. Two-thirds of the people who have lived past the age of 65 are alive today. In the United States alone, seniors (age 65 and older) number 35 million and will come to increase (with women being the largest segment), leading an unprecedented shift in the age of the population. By 2030, the U.S. Bureau of Census predicts there will be about 70 million people who are 65 and older - one in five Americans will be seniors.

This demographic shift requires an educated response in how professionals work with seniors and the challenges and opportunities they face. Wingate said, “With more people living longer, we are already beginning to see changes in how seniors function in our society, from retirees who choose to start a second or third career, to various forms of alternative senior housing and new approaches to diet, exercise and overall health care for seniors.”

The Aging Driver

For many, driving is a source of independence and self esteem. The car is the only transportation for most of us. It allows us to operate on our own schedules, get to the doctor’s office, get groceries, pick up the grand kids from school, and participate in all types of recreational activities. To maintain your standard of driving, however, you need to be aware of how physical changes associated with aging can ultimately affect your ability to drive.

Often, as we age, our eyesight and reactions change. Does driving make you feel nervous, scared, or overwhelmed? Do you feel confused by traffic signs, cars in traffic? Do you take medication that makes you drowsy? Do you get dizzy, have seizures, or losses of consciousness? Do you react slowly to normal driving situations? If you said yes to any of the above questions, then these are some warning signs of unsafe driving.

No one wants to stop driving and give up control over the things they do in their life. However, a time may come when it may not be safe for you to drive. This is an issue that you and your family must confront. Discussing this with your family will allow your family members to appreciate that driving is very important to you. Also, it is extremely important that you talk to your physician about your driving ability. Your physician is one of the most, if not the most, influential person that you can talk to about your decision to stop driving.

In the State of Maryland, an individual may not drive or attempt to drive an automobile on any State highway without a driver’s license. The State of Maryland does not have an age-based suspension or revocation of a driving license. However, a vision test is required for renewal of your license.

The Motor Vehicle Administration (“MVA”) may refer a driver to the Medical Advisory Board (“Board”), for an advisory opinion. This is done if the MVA has good cause to believe that the driving of a vehicle would be contrary to the public safety and welfare because of a known existing or suspected mental or physical disability. The Board is an advisory panel consisting of physicians and optometrists. The MVA, based on the Board’s advisory opinion, may suspend, revoke, refuse to issue or renew the license if the licensee is unfit, unsafe, habitually reckless or negligent.

Once the MVA receives a referral, the driver in question is notified that they must appear for an examination. Failure to do so may lead to automatic suspension of your license. At the review examination, the medical advisory board may perform tests.

Remember, driving is a privilege in the State of Maryland. The State can and will suspend or revoke your license if you are unfit to drive. Additionally, police officers have the right to stop your car if they have probable cause because they suspect you of reckless or negligent driving. You may then have to appear in Court or in a MVA hearing regarding your driving ability.

To maintain your high standard of driving, you need to be aware of how your body changes as you age. Changes to vision, peripheral vision, depth perception, night vision, clarity of vision, reaction times, medications and mobility can interfere with your driving performance. These changes can lead to inappropriate driving speeds, failing to observe and follow signals, poor judgment of distances and speeds of other areas, frustration; confusion; getting lost in familiar areas, weaving in and out of traffic lanes, and near misses or accidents. Therefore, you may benefit from a driver refresher course before functional decline presents problems. Mature driver courses are offered by a variety of organizations i.e., AARP Driver Safety program. This refresher course may even lead to a discount in your insurance.

When you do have to drive, remember these safe driving tips:

- Try to avoid left turns. If possible, make several right turns to get where you want to go.

- Always slow down and signal, in advance of your turn.

- Allow plenty of time and room to make your turn.

- Keep a safe distance between you and the car ahead.

- Sit high in your seat.

- Avoid driving at dawn, dusk, rush hour and at night.

- Always wear your current prescription glasses.

At some point you may need to stop driving for your safety and the safety of others on the road. You may come to this decision yourself, or by the recommendation of the doctor, or MVA. When you or someone close to you retires from driving, there are several things you can do to make it easier for you and your family.

Create a transportation plan:

- Come up with a list of names and telephone numbers of friends, relatives, or volunteers who are willing to give rides.

- Have handy the phone numbers of taxi cabs / shuttle bus services.

- Contact the Department of Aging in Frederick at

- Contact the Commission on Aging in Hagerstown at

- Encourage social activities.

- Be there for your loved one.

- Arrange to have groceries and/or delivered.

- Order medications by mail.

- Shop by catalogs.

Should you have to give up your car, look on the bright side of things. You will no longer have to pay the cost of fuel, car maintenance, insurance, car payments, etc. which may result in savings to you.

Driving issues are complex, especially with the dependence of the car in our society today and limited public transportation in may areas or communities. However, failure to act responsibly may force the State of Maryland to act on your behalf.

Q&A- Special Needs Estate Planning

Q.- What is a Special (also called Supplemental) Needs Trust (“SNT”) and when do I need it?

A.- Various government benefits like Medicaid, SSI cash payments, housing subsidies, mental health care, and Department of Social Services (DSS) group home or other housing are provided free, or at minimal cost, to disabled people, who have little or no money. Whether paid directly to a disabled person, or into an ordinary trust, most gifts and inheritances and accident, workers compensation, divorce, and other litigation recoveries jeopardize government aid and even may have to repay prior benefits. However, these amounts won’t disqualify a disabled person for government aid, if they are paid into an SNT, for the disabled person, instead of being paid directly, or an ordinary trust. Thus, an SNT should be part of the estate plan of every parent and grandparent of anyone who may be too disabled to work. A SNT should be created, even if your loved one doesn’t yet receive benefits, because government aid may be needed later, especially, if disabilities worsen with age. Also, many children can’t qualify for disability aid until age eighteen.

Q.- Why do I Need a Special Needs Trust to Protect Divorce and Personal Injury Recoveries?

A.- A divorce settlement may jeopardize SSI, Medicaid and other benefits unless alimony and child support are paid into a Special Needs Trust. A disabled person who has a personal injury claim, divorce award, or worker compensation recovery should ask his lawyer to arrange for an SNT before the claim is resolved. Don’t rely on your attorney to provide for an SNT, as many general attorneys aren’t familiar with this area of the law.

Q.- How Can a Special Needs Trust Minimize DSS & Mental Health Fees & Liens?

A.- Government agencies may recoup the cost of some public benefits (e.g. group home and other residential placements and certain mental health care) from a gift, inheritance, or other amount payable to a disabled person or an ordinary trust for a disabled person. In contrast, gifts and inheritances payable to a well designed Special Needs Trust need not repay public benefits. Consequently, dying without a will or leaving amounts to a disabled son or daughter outright or through an ordinary trust, may be equivalent to leaving your estate to the Government.

Q.- Why do I Need a Special Needs Trust Even If My Disabled Child Lives at Home?

A.- Even though your disabled child lives with you now, he or she eventually may be placed in a DSS or mental health placement or otherwise require long term care. Consequently, your estate may be forced to fund group home, medical, and other costs that would be covered by government programs if your estate plan included a Special Needs Trust.

Q.- When and How do I Set Up a Special Needs Trust?

A.- To create a Special Needs Trust, you typically sign a written trust instrument when you sign your will. Although you don't have to fund your SNT until you pass away, you must sign the trust instrument during your life time. If you don't, your child will face substantial costs, which wouldn't arise if an SNT were in place when you die. Because an SNT must comply with complex and arcane government benefit rules, an SNT should only be drafted by a lawyer familiar with SSI, Medicaid, DSS and other government program rules.

Q.- How Can Special Needs Trusts Reduce Costs If I Need Nursing Home Care?

A.- Medicaid generally pays nursing home costs for people with minimal resources except that a temporary Medicaid disqualification period usually applies to a person who makes gifts to reduce resources to Medicaid limits. However, an individual may qualify for Medicaid immediately by making gifts to a “sole benefit” SNT. Gifts to a “sole benefit” SNT are exempt from gift disqualification penalties and also avoid jeopardizing the SNT beneficiary’s government aid. A “sole benefit” SNT must satisfy special rules not applicable to ordinary SNTs.

My Story

DAVE'S STORY

My life changed in the early to late 1990's, although I didn't recognize it at this time. That is, when my wife's grandfather was living independently in Chevy Chase, Maryland.

One night I received a call from my mother-in-law. It was late at night. It was unusual for the phone to ring that late, so I answered the phone, with a feeling of foreboding, only to hear my mother-in-law's voice say that her father, my wife's grandfather, had fallen. Shortly after that, he was taken to the hospital. After medical treatment at the hospital, he was taken to a nursing home.

I was the attorney in the family, so everything was left to me. During this time, I had lots of questions: what options were available; what if granddad had to stay in the nursing home, would we be able to find a good one and would he get good care there; and if so, how were we going to pay for it? I tried to find answers to these questions, that I now answer for others. But I could only catch glimpses of the big picture. That research was my first act into the practice of elder law and life care planning.

After granddad was in the nursing home, I read about a meeting of the National Academy of Elder Law Attorneys. I attended the conference and at the end of the first day, I knew I had found my new profession – the practice of elder law. When I returned home, I threw myself into learning about elder law. I researched the area using law books and materials from the conference and I started putting together what later turned out to be the beginning phases of my new life care planning practice and my calling.

MEDICAID MYTHS - A Collection of Plausible, but False Propositions.

Many people want to know how to have Medicaid cover nursing home costs that can run over $72,000 a year. Few can pay the cost out of their regular income. It doesn’t take long to lose all one’s savings. Long-term care insurance is not available if the person is already sick. It is too expensive for many older people.

So, folks will ask friends and neighbors how to get Medicaid to pay and hold on to precious dollars for the rest of the family. But, does the question presume the nursing home is the only choice? My goal in dispelling the Medicaid Myths is to help elders and their families arrive at the best long term care plan.

Informed families can budget and allocate their resources to alternatives to nursing home care such as, caregiver aid, professional in-home care and residential assisted living. When they must so place they will get the best care for their loved one. Medicaid is a complicated area of the law.

1. Myth: “Medicare will cover my nursing home bill."
The Truth: Medicare only covers a small amount of the nursing home care provided in this country. Many older people are surprised to learn this. Medicare provides 20 days of full coverage if you spent at least three days in the hospital and need skilled care (not intermediate level care). Then, if you still need skilled care, you can get up to 80 days of partial coverage from Medicare, the co-pay will usually be picked up by your supplemental insurance. After that, you will either pay by your savings, your long-term care insurance or get Medicaid.

2. Myth: “Only substandard nursing homes participate in Medicaid.”
The Truth: Only a few Maryland nursing homes do not have Medicaid certified beds. The vast majority do.

3. Myth: “I will get better care if I private pay.”
The Truth: It is illegal to treat Medicaid patients less well than private pay patients and it is illegal to discriminate against Medicaid patients. There may be no “Medicaid wing” and no public identification of a “Medicaid bed.” Typically, the staff does not know which patient is a Medicaid recipient.

4. Myth: “If I enter a nursing home as a private pay resident, I must use up my assets before I can get Medicaid.”
The Truth: You are not required to “spend down” your assets to pay for the nursing home care. However, some nursing homes might try to make you believe that you do. You do have legal options. Informed people seek advice from an elder law attorney to decide if they wish to have Medicaid pay the bill before having spent a significant part of their assets.

5. Myth: “I can only ‘spend-down’ my assets on medical or nursing home bills.”
The Truth: See # 4 above. Nursing homes may tell you that you have to spend your savings on the nursing home bill before applying for Medicaid, but this is not true. In fact, it’s against the law for them to tell you this!

6. Myth: “I can find out all I need to know about Medicaid from the nursing home or the Medicaid agency
The Truth: The Medicaid law is very complex and counter-intuitive. It was written by Congress, after all! The nursing homes and Medicaid agencies do not have lawyers to interpret the law in your favor.

7. Myth: “I have to lose my home and everything I own to get Medicaid assistance.”
The Truth: A person is permitted to own “exempt property” and be eligible for Medicaid. This includes a home, even if return is unlikely, and a car, even if the patient will not drive. In addition the “community spouse” is entitled to keep a share of the assets. Further, some other assets are simply not counted by Medicaid. The trick comes in knowing what is “countable” under the Medicaid rules. The bottom line is, you don’t need to lose everything to be Medicaid eligible.

8. Myth: “I can keep all of my separate property when my spouse gets Medicaid.”
The Truth: When a married person applies for Medicaid, assets in either or both spouse’s name are considered by the Medicaid agency.

9. Myth: “If I put my property into my spouse’s name, I will be eligible for Medicaid.”
The Truth: All assets are counted, regardless of which spouse’s name they are in. If either spouse’s name is on the property, it is included. This includes IRAs, inheritances, property jointly owned with children and insurance policies for example.

10. Myth: “I must spend half of our assets before I can get Medicaid for my spouse.”
The Truth: A community spouse can keep half, up to approximately, $100,000, in countable assets. Any more than that will either spent or converted into non-countable assets. This is the “spend down” process.

11. Myth: “I can hide my assets and get eligible for Medicaid.”
The Truth: Intentional misrepresentation in a Medicaid application is a crime and can be costly. The IRS shares any information concerning income or assets you have with the Medicaid agency. These reports include interest income and the sale of stocks or bonds. You or whoever applied may have to pay Medicaid back to avoid prosecution.

12. Myth: “I can give away $10,000 per year under Medicaid rules.”
The Truth: This is a rule under federal gift tax law, not under Medicaid law. (Actually, the amount has changed to $12,000.) In 2008 a person may give $12,000 per year without liability for gift tax. However, since taxpayers have a $1 million lifetime exemption for the gift tax most do not need to be concerned paying the tax. And, millionaires should not worry about getting Medicaid.

13. Myth: “I can’t give anything away and get Medicaid.”
The Truth: The Medicaid rules provide that a person can be disqualified for giving away property. It depends on what is given away, to whom, and when. So, again, it’s complicated. Some asset transfers are not penalized under the Medicaid rules. Consult with a lawyer who knows the law.

14. Myth: “I have to wait 5 years after giving anything away, to get Medicaid.”
The Truth: The disqualification isn’t always 5 years long and sometimes there is no disqualification at all. True, there is now a 5-year “lookback” for some asset transfers under the Medicaid rules. This means that the Medicaid agency will look back at all transfers of property, including sales for less than market value.

How do I qualify, financially, for Medicaid?

If you have no assets or money, then Medicaid (“Medical Assistance”) will usually pay for your care. In the nursing home setting, Medical Assistance covers room and board, pharmacy and incidentals. Basically, Medical Assistance provides for your basic care, but does not cover certain expenses like haircuts, beauty shop charges and clothing. However, if you qualify for Medical Assistance, you can retain sixty-two ($62) dollars per month from your income / social security to meet any of these needs.

Medical Assistance planning is to offset the concerns of seniors regarding the high cost of long term nursing care. Generally, the purpose behind Medical Assistance planning is to make the individual eligible for Medical Assistance, while preserving as much of the individuals resources for the benefit of his or her loved ones. Medical Assistance planning occurs in a pre-planned stage or in a crisis stage. The pre-planning stage occurs when you are expected to enter a nursing home at sometime in the future. Generally, pre-planning techniques include: long term care insurance, gifting, and utilizing trusts. Medical Assistance crisis planning occurs when you enter a nursing home without any planning, and you are not expected to return home or to the community and you are paying the nursing home out of your own pocket. Medical Assistance crisis planning is more common because the majority of seniors are of the opinion that a nursing home stay will never happen to them. When the nursing home stay becomes a reality, you or your family, realizing the cost of nursing home care, will have to address the situation.

To qualify for Medical Assistance, you must be over sixty-five, or blind/disabled and have limited income and assets. If you are a single person, the only assets that you can maintain (non-countable assets) are basically, twenty-five hundred ($2500) dollars, some life insurance and your burial plot. Every other asset is considered available to pay for the nursing home costs (countable assets). Non-countable assets for a married couple are some savings, your home, household goods, a motor vehicle, some life insurance and burial plots. Savings accounts, checking accounts, 401K, pensions and CD's, life insurance policies, in excess of the non countable allowances, second homes, and other motor vehicles are all considered countable assets. Therefore, if you have assets in excess of the resource limitation, you will not qualify for medical assistance. Consequently, you must “spend-down” the excess amounts.

In lieu of giving all your money to the nursing home, you can “spend-down” your assets, with some proper planning techniques such as: purchasing prepaid funeral arrangements, paying off some debts, purchasing a new car and making home improvements. Additionally, the remaining “spend-down” amount can be eliminated through the purchase of a Medicaid Annuity. The Medicaid Annuity is designed to convert the “spend-down” amount into a stream of income. With the “spend-down” amount now eliminated, you become eligible for Medical Assistance benefits.

Put Caregiving Arrangements in Writing

When one family member becomes a caregiver for another, it's important to put in writing the terms of the arrangement. AARP estimates that more than 20 million Americans currently care for ill parents, other relatives or friends. Problems can arise if the caregiving arrangement is not clear to all involved. For example, a caregiver may be providing care without compensation, counting on an inheritance that never materializes.

A formal caregiver contract can outline the responsibilities of a caregiver, and specify the payment he will receive for services rendered and expenses, the article states. A contract ensures that the cost of care is paid at the time it is received and is not left for family members to wrangle over as part of a later division of assets.

Such a contract can also help the person receiving the care transfer assets as a way of qualifying for Medicaid. Payments for contracted services are not viewed as gifts to the care-giving relative, but reimbursement checks without a contract to support them may be.

A good caregiver contract also should:

Delineate the rights and obligations of both care-receiver and caregiver.

Be written as soon as possible, when the care-receiver is unquestionably of sound mind.

Specify what services are to be provided and at what cost. If the care-receiver is in the caregiver''s home, expenses might well include a share of those utilities, laundry, food and housing costs.

Fix the caregiver''s compensation at a reasonable rate, comparable to what an outside party would receive for the same services, and specify reimbursement for the caregiver''s out-of-pocket expenses.

What is Life Care Planning?

The Life Care Plan is a roadmap for planning your long-term care, designed with your individual and family needs in mind. The Life Care Plan includes a strategy for managing
your life utilizing all the necessary services and resources available in the local community.

Based on a thorough understanding of your long-term health care goals and needs, the
Life Care Plan provides recommendations for care regarding residency, personal lifestyle
and more, consistent with these goals and needs. Like traditional Estate Plans, the Life
Care Plan includes the legal protections and provisions you need to safeguard your assets,
honor your wishes, and care for loved ones. However, a Life Care Plan provides a more comprehensive and caring approach because it incorporates both your legal protections
and provisions and your health care goals and needs.

The Life Care Manager

A family crisis represents a difficult and frightening period in a family’s life.
Therefore, you need someone who is not only knowledgeable and experienced with
dealing with such crisis situations, but is also compassionate and empathetic to your
emotional needs.

A Life Care Manager is employed to be your support line, your advocate, your
confidant, and your friend. In conjunction with an attorney, the Life Care Plan is
developed by a Life Care Manager. Your Life Care Manager is knowledgeable about
the many services and resources available to the elder community and will assist
with the selection of home care services based on your needs, intervene when special
care situations arise, offer assisted living and nursing home options, act as a liaison,
and more.

The Ultimate Goal

The ultimate goal of the Life Care Plan is to ensure the best quality of life for you today and throughout the rest of your life. Your Life Care Plan should continue to evolve throughout your life to accommodate changes in your care situation.