THE ELDER LAW PRACTICE OF DANIEL D. MUNSTER
LIGHTING THE WAY FOR GEORGIANS SINCE 1999
I. NURSING HOME PLACEMENT ISSUES
How do I find a quality nursing home?
Few things are more stressful than finding a nursing home for a loved one. Everyone has heard nursing home horror stories and no one wants that to happen to their loved ones. While there is no way to guarantee that nothing will go wrong, some careful research and planning can help reassure you. Following are some criteria to consider when looking for a nursing home.
- Location. No single factor is more important to quality of care and quality of life of a nursing home resident than visits by family members. Care is often better if the facility knows that someone who cares is watching. Visits can be the high point of the day or week for the nursing home resident. So, make it as easy as possible for family members and friends to visit.
- Special Needs. Make sure the facility can meet any special needs the resident may have, including a ventilator, psychiatric care, or extra supervision. If the resident has dementia, the facility will need to be one that handles dementia patients. Make sure the staff is properly trained for dementia patients; there is enough staff, especially at night; and staff members are assigned to a particular resident.
- Personal Needs. Can the facility meet personal needs, such as religious or ethnic needs? Also, if the resident speaks a language other than English, are there staff who speak the same language?
- References. Ask the facility to provide the names of family members of residents so you can ask them about the care provided in the facility and the staff’s responsiveness when the resident or relatives raise concerns.
- Do research. For example, here are some sites to consider:
- Tour the nursing home. Try not to be impressed by a fancy lobby or depressed by an older, more rundown facility. What matters most is the quality of care and the interactions between staff and residents. See what you pick up about how the staff interacts with the patients, how well residents are attended to and whether they are treated with respect. Also, investigate the quality of the food service. Eating is both a necessity and a pleasure that continues even when we’re unable to enjoy much else.
II. MEDICAID & NURSING HOMES
Will Medicare pay for a long-term nursing home placement?
No. Medicare will only pay for a short stay in a nursing home following a hospitalization. To be more specific, Medicare will fully pay for twenty days if the resident was hospitalized for at least three days prior to the placement and requires skilled care in the nursing home. Following the first twenty days, Medicare will help to pay for an additional eighty days so long as skilled care continues (therapy, injections, wound dressing, etc.). However, during these eighty days, the resident owes a $164.50 daily co-payment. It is possible that the resident’s Medicare supplemental insurance policy will cover this co-payment. It is uncommon for a resident to require skilled care for the entire 100 days. In all circumstances, Medicare coverage will cease at 100 days.
Upon what standard does Medicare coverage of skilled nursing care end?
In many cases, the skilled nursing care facility will seek to terminate coverage sooner than 100 days because the resident has reached a “plateau” … they are not “improving”. While this standard is almost universally utilized in the industry, this is what the law actually says about the timing of termination (42 CFR § 409.32):
“The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.”
In fact, the Center for Medicare and Medicaid Services acknowledged this very point after being forced to settle a lawsuit on the subject:
“No ‘Improvement Standard’ is to be applied in determining Medicare coverage for maintenance claims that require skilled care. Medicare has long recognized that even in situations where no improvement is possible, skilled care may nevertheless be needed for maintenance purposes (i.e., to prevent or slow a decline in condition). The Medicare statute and regulations have never supported the imposition of an “Improvement Standard” rule-of-thumb in determining whether skilled care is required to prevent or slow deterioration in a patient’s condition. Thus, such coverage depends not on the beneficiary’s restoration potential, but on whether skilled care is required, along with the underlying reasonableness and necessity of the services themselves. The manual revisions now being issued will serve to reflect and articulate this basic principle more clearly. [Emphasis in original.]”
Those wishing to learn more about this topic should review the materials and attachments available here:
Will a resident receive lesser care if the payment source is Medicaid?
No. There are hundreds of nursing homes in Georgia and virtually all accept Medicaid as a source of payment. Nursing homes are not allowed to advise staff of a resident’s payment source. Staff are required to provide equal care to all residents. In reality, the factor most likely to determine the quality of care received is the frequency with which a resident receives visitors. For this reason, it is ideal that a resident be as close as possible to family and friends.
Isn’t it more difficult to get into a good nursing home if the resident will be on Medicaid?
Yes. Nursing homes may opt to consider source of payment upon admission. Accordingly, nursing homes will typically ask prospective residents to complete a financial summary in order to determine whether the person will be able to pay privately or have to seek assistance from Medicaid. For this reason, if an individual is destitute, it is imperative that the family place their loved one on several waiting lists at least three to six months ahead of an anticipated nursing home placement.
What makes it more likely to get into the nursing home of choice?
Nursing homes do not receive the same rate of reimbursement from each resident. Instead, reimbursement generally falls into three categories: Medicare, private pay (include long-term care insurance here), and Medicaid. Medicare offers the nursing home the highest rate of reimbursement. Private pay is the second highest rate of reimbursement. Medicaid is the lowest rate of reimbursement. Accordingly, residents who are seeking placement following a hospitalization are most attractive to nursing homes. Conversely, those who will be on Medicaid are least attractive. From this perspective, it becomes clear that placement in a nursing home is best facilitated by a prior hospitalization. If there is no traumatic medical event to require a hospitalization, then entering private pay is always the next best possibility.
What if a resident enters on Medicare or private pay and then converts to Medicaid?
While a nursing home can consider source of payment upon admission, it may not involuntarily discharge a resident for converting to Medicaid. Moreover, the facility may not retaliate in any way following conversion to Medicaid. Once a resident is Medicaid eligible, the facility must agree to accept Medicaid as payment in full.
Can a nursing home condition admission upon a promise to stay private pay for a period?
No. Duration of stay agreements that require a resident to remain private pay for a specified period are not allowed.
Can a nursing home require a family member to guarantee private payment for a period?
No. Nursing homes may not condition admission upon a third-party guarantee that a resident’s bill will be paid privately.
If a resident seeks Medicaid, will the state take all the resident’s property upon approval?
No. When determining eligibility, Medicaid will categorize all an individual’s property as either exempt or non-exempt. To the extent that non-exempt property is above the allowable limit, Medicaid will be denied and the person will have the options of either 1) implementing a smart Medicaid plan through the assistance of an eldercare attorney or 2) spend down savings to the non-exempt resource limit. At no time during the resident’s placement, however, will Medicaid “take” property. Rather, Medicaid will simply decline assistance until a Medicaid plan has been implemented or assets have otherwise been spent down. Note that while Medicaid will not “take” anything while the resident is living and receiving benefits, there will potentially be recovery from the person’s estate upon death.
What is “Medicaid planning”?
Medicaid planning is a means of working within all applicable law to set aside savings for the benefit of nursing home residents who will otherwise be economically devastated by the exorbitant cost of private nursing home care. By preserving savings, implementation of a Medicaid plan allows the resident continued access to the many things not otherwise covered by nursing home Medicaid. For example, items not within the scope of Medicaid coverage include a private room (often medically necessary for residents with behavioral issues arising from advanced dementia), companion caregivers (to supplement the personal care provided by overworked nursing home staff), geriatric care manager services, eyeglasses, dentures, hearing aids, beauty shop visits, cable television, telephone line, and all other personal belongings.
Is Medicaid planning legal and ethical?
Yes. Medicaid planning exists within the framework of all applicable state and federal law. It is not a means of hiding assets beyond the reach of government authority. It is not focused on preserving assets for the benefit of potential heirs. Instead, it is the only recourse left to those seniors facing economic disaster because they have too little to pay privately and too much to initially qualify for Medicaid. Seeking the advice of an eldercare attorney about Medicaid planning is akin to seeking advice from an estate tax planning attorney or a CPA about the rules found in the Internal Revenue Code.
Is there a limit to the size of an estate that can be restructured as part of a Medicaid plan?
Probably. Although the technical answer might be no, there is definitely a line above which it is philosophically and ethically inappropriate to implement a Medicaid plan. In determining whom to assist, this firm considers many factors including but not limited to the age and life expectancy of the resident, the age and life expectancy of a spouse, and the income available relative to private pay costs and monthly overhead for a spouse still at home. If it is clear that savings are dwindling rapidly and that which it took a lifetime to earn will be erased in a very short time, then it is this firm’s position that Medicaid planning would be appropriate.
After implementing a Medicaid plan, will I have access to money to care for mom?
Yes. There are a variety of planning opportunities in Georgia. Each allows access to funds in varying degrees. Keep in mind that the whole point of doing Medicaid planning is to create the ability to provide supplemental care to the nursing home resident. If access is too limited, then the plan misses the point.
What about buying long-term care insurance?
Long-term care insurance is an excellent idea for those who are insurable from a health perspective and who can afford it. For those already in a nursing home or who face imminent placement, this insurance will no longer be available. Accordingly, it is imperative to seek advice about insurability and cost as early as possible. Because most people facing the prospect of placement are uninsurable or the cost is prohibitive, Medicaid planning becomes the only alternative. Note also that the state of Georgia is in the process of creating the Georgia Long-term Care Partnership Program. While the details are still being worked out, the general premise of this program is to encourage people to buy long-term care insurance by allowing an increased Medicaid asset limit once the insurance benefits are exhausted. To learn more about the general concept, go here:
How quickly can implementation of a Medicaid plan result in eligibility for assistance?
Very quickly in Georgia. If an individual is in a nursing home or about to be in one, eligibility can usually be established within a matter of a few weeks or at most a few months. This is in stark contrast to the possibilities in other states where people must wait for up to five years to pass.
Why doesn’t Georgia have the five-year rule?
It does. But this is a rule that applies only to planning through gifting or irrevocable trusts. In reality, there are at least three types of planning available in Georgia. So long as gifting or an irrevocable trust are not utilized, then the five-year rule is not invoked and eligibility can ensue very quickly.
What are the resource eligibility rules in Georgia?
In 2017, assets that are considered non-exempt are limited to $2,000 for a single person and $120,900 for a couple (total of $122,900). Assets that are considered exempt are not subject to any valuation limit except that a single person’s home is limited to no more than $556,000 equity.
Can a couple simply place all assets in the healthy spouse’s name and expect to qualify?
Generally no. Moving assets into the healthy spouse’s name normally accomplishes nothing from a Medicaid perspective in Georgia. When determining a spouse’s eligibility, all assets owned in either spouse’s name will typically be included for purposes of the $122,900 test.
What are the income eligibility rules in Georgia?
In 2017, the standard income limit is $2,205. Note that this test looks only at the income of the nursing home resident. The community spouse’s income is not considered. If an individual has income that exceeds $2,205, execution of a Miller Income Trust will be required to gain eligibility. A Miller Trust is a simple legal entity created to serve as a conduit for the resident’s income. Following execution, the trustee will be charged with depositing the resident’s income into the trust each month and then paying it out according to specific rules set by Medicaid. Those rules generally allow the resident to receive a $50 personal needs allowance, allow a deduction to cover the cost of Medicare supplemental insurance, and allow a deduction to divert income to a spouse living at home whose income is below $3022. Any remaining funds generally must be paid to the nursing home.
Can planning be done today if nursing home placement is several years down the road?
Yes. Where placement is in the distant future, it is always advisable to seek long-term care insurance if one is insurable and it is affordable. Where placement is on the intermediate horizon, planning can be initiated ahead of time so long as it is understood that there is always the risk that changes in the law will either alter or destroy altogether the effect of that preemptive planning. Accordingly, those contemplating this question should definitely seek the advice of an elder law attorney to determine whether preemptive planning is appropriate.
Can’t I plan ahead and apply for Medicaid now to avoid complications with law changes?
No. An application for nursing home Medicaid cannot be filed until the person is actually placed in the nursing home.
My neighbor told me to give everything to my kids. Is this good advice?
This is a very dangerous possibility. Whereas such drastic action might help, it could also create a bigger problem than was there originally. Accordingly, it is critical to seek legal advice prior to gifting anything.
My neighbor told me to put all I own into a trust. Will this help at all?
Depends on timing. As a result of changes in the law since 1993, trusts are generally unhelpful or will actually create trouble for those seeking assistance from Medicaid. Having said this, it is possible that a very skillfully drafted irrevocable trust might provide some benefit if it is settled more than five years prior to the need for nursing home placement. Moreover, it might be possible to utilize a special needs trust as part of Medicaid planning in Georgia if the circumstances are appropriate.
Will the family home have to be sold in order to get help from Medicaid?
Generally no. The home is considered an exempt asset and need not be sold so long as the equity in the home is less than $552,000 (equity limit applies only to an unmarried applicant). If equity exceeds this amount, additional planning may be needed before eligibility can be achieved. Moreover, there are other factors to consider. First of all, a resident’s income will no longer be available to cover costs associated with a mortgage, taxes, insurance, and general maintenance (see next question about patient liability). Accordingly, it may become necessary to sell the house from this perspective notwithstanding the fact that Medicaid allows the resident to own it. In this case, the proceeds of the sale would destroy ongoing eligibility for Medicaid unless they are immediately restructured as part of an efficient Medicaid plan. This is not uncommon and actually is preferable to some who are glad to have access to the equity in the home to provide supplemental care to the resident.
Once a resident is on Medicaid, what happens to their income?
It depends on whether they are single or married. For a single person, all income other than a $50 personal needs allowance and that which is required to cover health insurance premiums will generally have to be paid to the nursing home as the resident’s fair share of the bill. This is called patient liability. For a married couple, the answer is significantly different. To the extent that the community spouse has low income, the nursing home resident will be able to share some or all of his income with her so that she does not become impoverished.
Will Medicaid cover the cost of assisted living?
No in almost all circumstances. Assisted living facilities generally provide custodial care that does not fall within the Medicaid arena. Medicaid will typically only pay for care provided in a skilled nursing facility. While this is true as a general rule, there is a Medicaid program in Georgia called the Community Care Services Program that can help with assisted living on very rare occasions.
Will Medicaid pay for any home health care?
Possibly. The Community Care Services Program is a Medicaid program designed to provide care for people in the home who would otherwise require nursing home placement. The underlying premise of this program is wonderful in that it seeks to prolong a higher quality of life for the individual at home while at the same time saving the state money because the cost of care in the home is less than the cost in a nursing home. While this sounds excellent in theory, the problem is that the program is woefully underfunded and usually has a lengthy waiting list. Those seeking more information about CCSP should call the Atlanta Regional Commission at 404-463-3333.
FOLLOW THIS LINK FOR A WEBSITE WITH AN EXCELLENT COMPILATION OF LONG-TERM CARE PLANNING AND NURSING HOME INFORMATION:
III. ESTATE RECOVERY
In late February 2007, the state of Georgia finally initiated its estate recovery program. This program is designed to recover certain benefits paid on behalf of nursing home Medicaid recipients after May 2006. To the extent that your loved one has passed away since May 2006, you should expect a letter from the state identifying an amount that must be repaid. This debt is similar to other debts of the estate and generally must be satisfied out of the estate’s assets before heirs can receive what is left over. There are rare occasions when estate recovery might be waived, including when the estate is valued under $25000 or when the spouse is awarded a Years’ Support through probate court. If you have questions about estate recovery, we would refer you directly to the state’s recovery hotline at 770-916-0328. In addition, you are encouraged to go here to read the actual recovery regulations so that you can begin to develop an understanding of how recovery will occur:
With the advent of estate recovery in Georgia, should I still implement a Medicaid plan?
Absolutely. Planning for eligibility may very well result in ownership of assets from which the state does not seek to recover. Only time will tell which assets are outside of estate recovery, but it is possible that some assets will escape recovery altogether. Moreover, even if estate recovery is implemented and Medicaid benefits previously received must be repaid, repayment takes place at the Medicaid rate instead of the private pay rate. On average, a nursing home in metro Atlanta costs $90,000 per year if one is paying privately. On the other hand, an average Medicaid reimbursement rate is closer to $66,000 per year. Accordingly, in this hypothetical, the resident saves nearly $24,000 per year because she was on Medicaid. Finally, keep in mind that once eligible, the recipient is only responsible for paying some of her income over to the nursing home. Accordingly, the negative cash flow effect otherwise created by private nursing home payments is greatly diminished. For these reasons, the best course is still to work with an attorney to qualify with the help of a Medicaid plan before everything has been spent.
IV. ADVANCE DIRECTIVE ISSUES
What is an “advance directive”?
Advance directives are documents in which an individual can state ahead of time that which she wants to happen in the future. The most common examples of advance directives are living wills, financial powers of attorney, medical powers of attorney, and wills.
What is a living will?
Having nothing to do with distribution of property upon death, the living will is a statutorily created document which expresses the desire to have life sustaining procedures continued or terminated in the event that a patient is in one of three critical medical conditions (coma, persistent vegetative state, terminal illness) and there is no reasonable likelihood of recovery. In addition, a living will allows the patient to indicate whether she would like to continue or terminate provision of food and water when suffering from one of these critical conditions. We often think of the decision addressed in a living will as whether we want to be “hooked up to a machine” to be kept alive when we would otherwise die naturally. As opposed to the powers of attorney addressed below (which create an agent to act for you), note that a living will speaks for itself. If you are suffering from one of these three critical conditions, your living will states exactly what you want to happen so that your loved ones do not have to make the excruciating decision regarding provision of life sustaining procedures.
What is a Durable Power of Attorney for Health Care?
Also expressly authorized by Georgia law, a durable power of attorney for health care is a document in which we designate an agent to assist with all matters relating to our person. Along with general medical decisions, other matters such as access to medical records, disposition of remains upon death, organ donation upon death, access to finances to pay for medical care, visitation rights, admission to medical care facilities, and the authority to employ and discharge medical care personnel can be addressed in this document. In addition, an agent can receive authority to make decisions regarding the provision or termination of life sustaining procedures that would otherwise be addressed in a living will. Though our agent cannot force a decision upon us while we retain mental capacity, she will have authority to act independently if we lose that capacity. In the absence of a durable power of attorney for health care, Georgia law provides a less desirable alternative which allows our spouse or nearest relative to consent to needed medical care or treatment. However, because this law does not cover the vast array of other issues included in a durable power of attorney for health care, and persons with authority under the consent statute may disagree on a critical decision, execution of a durable power of attorney for health care remains the preferred alternative.
Should I have a Living Will and Durable Power of Attorney for Healthcare?
Effective July 2007, the Georgia General Assembly created a new statutory document intended to replace both the Living Will and Durable Power of Attorney for Healthcare. The new document, called the Georgia Advance Directive for Healthcare, combines the two documents in one and serves as a wonderful guide for the agent and family when emergency medical decisions must be made. Under the new law, people can choose to either keep their old documents in place or proceed with execution of the new form. For those who do not have anything currently, it is best to proceed with the new form. The new form can be obtained from various organizations, including Georgia Legal Aid:
What is a Durable Power of Attorney for Property Matters?
Whereas the Georgia Advance Directive for Healthcare addresses decisions regarding our person, the durable power of attorney for property management generally allows our agent to make decisions involving our finances. The breadth of authority granted in a durable power of attorney for property management can be great or quite limited depending on the principal’s underlying goals. For example, a broad durable power of attorney for property management might include authority to conduct business involving real estate, bank and securities accounts, insurance, taxes and just about anything else imaginable. On the other hand, a limited durable power of attorney for property management can be drafted to cover just a single transaction such as the authority to conduct a closing on the sale of the family home. Similar to the durable power of attorney for health care, the agent under a durable power of attorney for property management cannot force decisions on the principal. Rather, so long as the principal retains capacity, the agent may only act in concert with the wishes of the principal. While most durable powers of attorney for property management become effective upon execution, those who do not want authority to pass until they lose capacity can opt for a springing durable power of attorney for property management. In this event, the document only becomes effective upon the occurrence of a specified event. In most cases, these documents spring to life when the principal’s treating physician is willing to state in writing that the patient has lost the ability to manage her financial affairs. Georgia law does not provide a financial counterpart to the previously discussed provision that authorizes our nearest relatives to consent to medical treatment. Instead, the only alternative available in cases where the principal has lost capacity is to seek conservatorship through an order from probate court. Because this process can be time consuming, expensive, and detrimental to family harmony, execution of a durable power of attorney for property management is advisable.
Who should be appointed agent under my powers of attorney?
Someone you know to be reliable, capable, and trustworthy. This is generally going to be a spouse or adult child, but can also be a younger sibling or friend. It is important to note that powers of attorney are executed to avoid confusion later, so choosing an agent who herself might be incapacitated in your hour of need is not advisable. It is very important to choose an agent in the medical power of attorney who lives fairly close by and can react quickly in a medical emergency. The need for geographic proximity is less in the context of the financial power of attorney.
Can I name more than one person to serve as agent under my powers of attorney?
Yes, but be careful. Again, the point of executing advance directives is to create clarity later when something has gone wrong. By naming co-agents, you create a situation where the two agents may disagree with one another. This could lead to critical loss of time and may very well impact the relationship between the two people. In most cases, it is better to name a primary agent with sole authority to act for you and then a successor agent to step in if something happens to the primary agent.
Can I revoke my power of attorney?
Yes. So long as you retain mental capacity, the powers of attorney can be revoked at any time. If there is a need to revoke a power of attorney, it is important to do so in a written document executed with formalities similar to those found in the original document. Following revocation, a copy of the document should be provided to all who are known to have a copy of the original power of attorney.
Is there a minimum level of capacity required to execute a power of attorney?
Yes. Although there is no black and white test, there is a general rule that the individual signing the document must understand its general nature and the consequences of signing it. This is sometimes a difficult question that can be clouded by illness and/or medication. A power of attorney signed by someone who does not understand it is invalid.
What if mom has lost capacity and it is too late to get a power of attorney?
If capacity is gone, then the only alternative becomes seeking guardianship through the county probate court. Similar to powers of attorney, there are two types of guardianship: one over the person and one over the property (conservatorship). Obtaining guardianship can be a time consuming, expensive, and often disharmonious process. Accordingly, it is always ideal to seek powers of attorney prior to a loss of capacity.
What if I executed these documents in another state and then moved to Georgia?
Georgia will generally recognize advance directives from another state so long as they were executed with the formality (witnesses and notary public) that would have otherwise been required in Georgia for a specific document.
V. MEDICARE SUPPLEMENTAL INSURANCE V. MEDICARE ADVANTAGE PLANS
Those turning 65 are faced with a difficult choice when it comes to their future healthcare insurance. On one hand, they can elect to remain on traditional Medicare and combine it with a Medicare supplemental insurance policy (also called “Medigap” insurance). On the other, they can elect to leave traditional Medicare and enroll in the Advantage plan offered by any of several private insurers in Georgia. Because these choices can be challenging, the Georgia Division of Aging Services has created an entity called Georgia Cares which provides, among other things, 1v1 counseling on these Medicare choices. To get his help, call 1-866-552-4464 or go here:
This is a link provided by the non-profit Center for Medicare Advocacy which is designed to help you evaluate which option is best for you or a your loved one:
And finally, this is a link from Consumer Reports that might be helpful:
In terms of switching between traditional Medicare and an Advantage plan midyear, note that this can only be done during Open Enrollment between October 15 and December 7 of each year as summarized here:
Finally, keep in mind that if you do elect to remain on traditional Medicare, you will likely want to consider enrolling in a Medicare Part D prescription drug plan. You can read much more about the process of selecting a Part D provider here: