Massachusetts Estate Planning & Asset Protection Blog

Is your Planning Stuck in Limbo? (part 2)

Posted by Dennis Sullivan & Associates on Tue, Aug 01, 2017

How does the debate over health care reform affect you and your estate plan?

35274856603_c2af85ca10_b.jpg In our last post we discussed the importance of keeping up with the constant changes happening in health care reform. We will continue to examine how the on-going deliberations in Washington may affect you, your future health care and your estate.  We at Dennis Sullivan & Associates are keeping up to date on all the changes, and making sure you stay informed on all the important details.  For more information on the current law of the land, you can download our Report: Senior & Boomers Guide to Health Care Reform.   

The Senate has dealt a devastating setback to Republican efforts to repeal and replace Obamacare, defeating a GOP "skinny repeal" bill early Friday morning. With the "skinny repeal" bill off the table, lawmakers are unsure of where the health care debate is headed. 

Senate Majority Leader McConnell and his staff are trying to find a balance between conservative Republicans, who want a full repeal of ObamaCare and a replacement that has lower health care costs, and more moderate Republicans who want to preserve its more popular benefits.

The deal-making process is in full swing, with the additions of opioid funding and allowing health savings accounts to be used to pay for insurance premiums. Some Senators are for potentially leaving in some taxes to pay for more generous benefits, after weeks of being criticized by Democrats for offering “tax cuts for the rich and Medicaid cuts for the poor.” Conservatives want to cut more from the regulations and many from Medicaid expansion states are uneasy about future cuts to Medicaid.

Senator Ted Cruz of Texas has offered an amendment called the “Consumer Freedom Option” that would allow insurance companies to sell any health coverage plan they wish as long as they provide one plan that satisfies the “essential benefits” mandates of Obamacare. While the Cruz amendment appeals to conservatives who want to provide consumers with lower cost options, moderates are concerned it could negatively impact those with pre-existing conditions. Supporters have suggested that federal subsidies could help ensure that premiums don’t increase for those who are seriously ill. The CBO is currently scoring this amendment.  

President Trump, along with Senator Rand Paul of Kentucky and Senator Ben Sasse of Nebraska, has even offered to repeal ObamaCare for now and replace it later.

Of course, no one is going to get everything they want so there must be compromises. Majority Leader McConnell has said that if the Senate is not able to pass a bill soon, Congress will have to pass a bipartisan measure to shore up the imploding health insurance markets.

And so, the Civics lesson continues. The process is at work.  As we see here the process can be long, unstable and worrisome.  Luckily for you your estate planning doesn’t have be. We at Dennis Sullivan and Associates make your estate planning and asset protection worry and stress free.  Once you have a plan in place you will feel confident knowing it will protect you, your family and your life savings.  You can enjoy life to the fullest knowing you and your family are protected no matter what unknowns lay ahead. 

 

At the Estate Planning & Asset Protection Law Center, we help people and their families protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: Affordable Health Care, Affordable Health Care Act, Announcements, Elder Law, Estate Planning, Financial Planning, Health Care, Health Care Ruling, Medicaid, Medicare, Obamacare, Retirement, applying for medicare, Medicaid penalties, care costs, care, coverage, coverages, disenrollment, elder care, enrollment, elder care journey, federal, health, health Care act, life-care plan, long term care, medicaid qualification, medical expenses, proposed changes, senior, unreimbured medical expenses, seniors

For Seniors Who Are Betting on Getting to 80

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Thu, Aug 28, 2014

Betting on Getting to 80 | Massachusetts Elder Care Attorney

 

outliving, eldercare, savings, estate, nursing home 

For Those Who Are Concerned About Outliving Their Money

According to research for our book The Seniors and Boomers Guide to Health Care Reform and Avoiding Nursing Home Poverty, outliving one’s life savings is a top concern for many people. One possible solution to this is what the US Treasury is pushing many baby boomers to do: start writing checks to their insurance companies for products that won’t be a financial benefit for them until they’re 80. The Treasuries new rules on annuities known as longevity insurance could allow millions of Americans fresh options for their retirement accounts and 401(k) plans. This is according to Bloomberg Personal Finance.

The challenge: convincing savers to choose that option. The annuities thrill retirement experts and policy makers who see them as a way to ensure workers don’t end up impoverished in old age. Just about everyone else ignores the products, which make up less than 1 percent of all annuity sales.

It can be a great investment too. With $125,000, a 60-year-old man can buy a policy from New York Life that guarantees an income of almost $45,000 a year starting at age 80. The same $125,000 in a regular retirement account would need to grow at the unlikely rate of 11 percent a year from age 60 to 80 to provide that income, assuming 4 percent is withdrawn annually after age 80.

Planning for the Future

Since women live longer than men, their longevity policies are more expensive, and more valuable. Millions of widows in their 80s and 90s end up living on Social Security alone. A 60-year-old woman who puts $125,000 into one of these annuities could get an annual payout of $35,268. For women with a husband and no children, a longevity benefit is a comforting buffer against long-term care costs.

Dollars in longevity policies go farther for those who buy earlier than 60 or start the benefit later than 80. If the insurance becomes common in retirement plans, the cost of policies should fall. To maximize her payout, Carson decided against buying inflation protection and a provision that refunds all the money she put in if she dies early.

Indeed, the oft-repeated big risk with longevity insurance is that buyers could die before they collect. But that chance is what allows the policies to be so lucrative for the long-lived. Those who die early help pay for those who live into their 90s and later. And even if you die at 75, the guarantee of income at 80 means you can tap the rest of your nest egg earlier without worrying so much about running out of money.

How It Works

For longevity insurance to catch on, it needs to gain a foothold in retirement plans. The Treasury rules let workers devote as much as 25 percent of their 401(k) to the products, up to $125,000. That doesn't mean employers will offer the option or that workers will choose it though.

Employers face legal liability for their retirement plan options, making them cautious about relatively unproven products. Insurance companies may need to come up with new kinds of longevity annuities that are more transparent and are geared more towards women since they tend to live longer.

Adding to the resistance is a widespread assumption that Americans don't want to lock up their cash in insurance products. They'd rather get big eventual lump sum payouts, even if they have no idea how to turn that into an income that will support them in their old age.

What the Experts Think

If longevity insurance takes off, it will be a real victory for the experts who have been striving to change that mindset. This may also provide a solution for many boomers and seniors for whom outliving their life savings is a major concern. For more information about these and other concerns see the report from the Seniors and Boomers’ Guide to Health Care Reform and Avoiding Nursing home Poverty.

Seniors, boomers, guide, poverty, nursing home,

Everyone would love 401(k) plans to look more like traditional pensions or Social Security, so savers can put less focus on the balance in their account rather than on the income it will eventually produce. That's an outlook your 100-year-old self may well appreciate.

At the Estate Planning & Asset Protection Law Center, we provide a unique education and counseling process which uses a unique 19 Point Trust, Estate and Asset Protection Review to help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones, click here for more information. We provide clients with a unique approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: Elder Law, annuity, Baby Boomers, family, elder care, assisted living, elder care journey, assets, care, Elder Law, senior, insurance, surviving spouse, family

Can Your Will Protect You When You Don't Die?

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Thu, Aug 07, 2014

 

What Happens When You Don’t Die?

medicare, medicaid, wills, spouse

 

Is your “I love you” will capable of protecting you or your spouse from long-term care costs?

You know the kinds of wills we’re talking about: The husband leaves everything to the wife, the wife leaves everything to the husband and after they both die, everything goes to the kids. This works well in situations where the spouses are healthy one day and are deceased the next. 

However, as most of us know, life usually doesn’t work that way very often. Research indicates that nearly 70% of individuals over 65 will require some kind of long-term care in their lifetimes.

Thus, many spouses worry that if they predecease an ill spouse who is currently in a nursing home or will require long-term care at some point in the near future, there will be insufficient funds available to provide for their institutionalized spouses’ needs. This is an especially relevant concern for expenses that are not covered under Medicaid such as: care managers, private nurses, single rooms, as well as certain therapies and drugs.

Another concern is that the availability of funds from “I love you” wills and trusts will disqualify the surviving ill spouse from eligibility for Medicare benefits. As you know from prior articles, Medicare (MassHealth in Massachusetts) is the only long-term-care governmental program in the United States and does not cover long-term custodial care.

To solve this problem many of our clients rely on a “testamentary trust”. This is a trust built into the will of each spouse. For many estate planners, this is counterintuitive because much of the estate planning occurs within the context of a revocable living trust. In order to preserve access to Medicaid eligibility without requiring that the surviving spouse spend down the assets and lose the chance to maintain a “rainy day fund”, creating a testamentary trust in the will of the pre-deceasing spouse is essential.

What this means is that around age 55, you have to completely revise your wills and trusts to accommodate a different paradigm of thought. The thinking process is no longer “What happens when I die?” Now the question becomes “What happens if I don’t die and live a long time with expensive long-term care?”

The new paradigm requires a new estate plan. If you consider yourself middle-class (meaning that your net worth will be significantly impacted by the cost of long-term care for you and/or your spouse) and are over age 55, we suggest that you revise and update your estate plan to reflect your current and future needs as soon as possible.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: will, living will, Estate Planning, Estate Planning, Alzheimer's Disease, Elder Law, asset protection, long term care, Medicaid, in-home care, Health Care, estate reduction, estate, elder care journey, hospice, Alzheimers Disease, medicaid qualification, Wills, assets, Medicaid penalties, alzheimer's activities, in home, incapacity, Elder Law, Attorney, myths, Alzheimer's, alzheimers, financial, Attorney, income, Alzheimer's, federal, health, surviving spouse, in-home care, long term care insurance

Things You Need To Know About Hospital Admissions and Long term care

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Tue, Jul 29, 2014

 

Medicade Estate Planning Asset Protection

 

The Bad News: The Three Midnight “admission” Stay Requirement Can Destroy Medicare Coverage for Rehab (the cost could be from $8,000 to 10,000 a month)

 

Alas, notwithstanding all the controversy about the Three Midnight Stay Rule (That you must be on “Admitted” status not on “Observational” status) to qualify for the subsequent Medicare coverage, we still do not see any relief.

 

There is legislation pending to change this so that people are very clear as to when they are on admission status versus observation status, the latter of which does not qualify towards the Three Midnight Stay required by Medicare for coverage in a subsequent rehabilitation center. This has surprised, shocked and disappointed a large number of seniors. Don’t let it happen to you!

 

The Good News: The Old “Improved Standard” for Medicare Coverage is out and the new “Maintain Standard” is in!

 

As a result of the recent court decision in Jimmo v. Sibelius that was decided in 2013, Medicare clarified that maintenance coverage under the skilled nursing. Home health, skilled therapy and outpatient therapy benefit does not depend on whether the patient can improve. Eligibility for Medicare depends solely on whether skilled care is required and whether the actual services are reasonable and necessary.

 

This means that you no longer need to demonstrate that you will be improving every day during treatment. With chronic diseases such as MS, Parkinson’s and other health matters, improvement may not actually be possible. However, healthcare providers humanely try to help patients maintain and sometimes this maintenance is dependent on their skilled care. Now, as decided in the class action lawsuit mentioned above, you will qualify for Medicare.

 

Clients and patients should be made aware that they may request a review for all Medicare claims for skilled care or therapy denied before January 13, 2011.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: Estate Planning, Estate Planning, Elder Law, MassHealth, Estate Planning Tip, elder care, elder care journey, Massachusetts, Elder Law, Estate Planning Recommendations, Massachusettes, 2014

Mass Health and VA Aid and Attendance 2013 | MA Elder Law Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Fri, Jan 18, 2013

Every year brings change, sometimes small sometimes big.    Many of the government benefit programs that we work with frequently, such as MassHealth’s Medicaid program and the VA Aid and Attendance program, underwent slight changes as the clock turned to 2013. 

Medicaid and VA Aid and Attendance are needs based programs.  There are certain income and asset limitations.  These numbers typically are tied to the Social Security increases.  When Social Security benefits get a cost of living adjustment so do these other programs.  In 2013 the increase for Social Security is 1.7%.

Accordingly, under MassHealth’s Medicaid porgram, an applicant must spend down countable assets to less than $2000 in order to qualify.  However, in the case of a married couple, the healthy spouse can keep "countable assets" up to a certain dollar limit.  This year that number is $115,920.

VA rates also have increase in 2013.  A single veteran qualifying for Aid and Attendance benefits can now receive a maximum of $1732, an increase of $29 per month.  A married veteran who needs care can qualify for as much as $2053 per month of tax free income and the widowed spouse of a veteran can receive up to $1112.

For more information about  whether MassHealth’s Medicaid program or VA benefits may be available to you or your loved one call (800) 964-4295 (24/7) and register to attend one of our free, educational workshops.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique education and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

Again, we encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

elder law, senior, family, estate planning, massachusetts, boston

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: asset protection, Medicaid, MassHealth, seniors, veterans benefits, elder care journey, Elder Law, asset, Attorney

Massachusetts Elder Law Attorney | Medicare Part B Premiums on the Rise

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Mon, Jan 14, 2013

Effective this month, the monthly premium for Medicare Part B (out patient services) has increased by 4.7%.  The new monthly premium will be $104.90 for most.  The increase amounts to about 25% of the Social Security cost-of-living adjustment.  It should be noted that those with higher incomes will see a greater increase in the Medicare Part B premium, based on a sliding scale.

It is also important to note that the Medicare Part B deductable has risen to $147 and the Medicare Part A (hospitalization) deductable has increased to $1,184.

The Medicare Rights Center, a non-profit organizat estimates that the average Medicare recipient spends about $4,500 per year out of pocket on health care.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique education and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 

 

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AS A LIMITED TIME SPECIAL OFFER You can access a free preview of this new guide. 

In the full version of the guide, which is currently in publishing, will be made available on Amazon and Barnes & Noble when it is completed. 

You will learn about health care reform and the steps that you can take now to protect your home, spouse, and family from increasing medical and nursing home costs.

Discover the secrets smart Massachusetts families are using to cut long-term care costs.

Tags: Medicare, Medicaid, Health Care, elder care, seniors, elder care journey, Wellesley, Elder Law, Attorney, senior

Massachusetts Elder Law Attorney | Safe Driver Program for Seniors

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Fri, Nov 30, 2012

seniors, safe driver, attorney, lawyerMany people have not read a driver license handbook since we were 16.  For some, that’s more than 50 years ago. 

It is time to remedy this problem – with a driving refresher or safety course. You or a loved one can do it by attending Safe Driving for Seniors, a safe driving program we are hosting in Wellesley on Wednesday, January 22 at 11:00 am.

The Safe Driver Program we are offering in association with AAA is designed to help senior drivers be safer while staying behind the wheel longer. The program is specifically for drivers 55 and older. It delivers tips and techniques to help experienced drivers compensate for changing vision, reflexes and response time; understand how prescription medications may affect driving; and drive defensively in a variety of situations.

Call our office at (781) 237-2815 to reserve your seat today!

Tags: Elder Law, Health Care, family, elder care, seniors, elder care journey, senior drivers, senior driving, senior, safe driving, Attorney

Massachusetts Medicare Lawyer | Original Medicare & Getting Prescripstion Drug Coverage

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Fri, Nov 23, 2012

health care, senior, family, elder law, attorneyDid you switch to Original Medicare during Medicare Open Enrollment Period? Maybe you’ve just become eligible for Medicare and have decided Original Medicare is right for you.

What about prescription drug coverage? In general, prescription drug coverage isn’t included in Original Medicare. And coverage isn’t automatic. For this reason, many people enroll in a Medicare Part D prescription drug plan.

When can I get coverage?

Standalone Medicare Part D prescription drug plans are offered through private insurance companies. They only help pay for prescription drugs. Not all plans cover all prescription drugs, so be sure to do your research. Before choosing a plan, check its drug list—called a formulary—to make sure your drugs will be covered.

To be eligible for Part D prescription drug coverage through Medicare, you must first be enrolled in Original Medicare. There are two main enrollment periods for Part D prescription drug plans:

  • Your Initial Enrollment Period (IEP) when you first become eligible for Medicare.

  • The Medicare Open Enrollment Period (OEP), October 15th – December 7th.

Note: If you dropped a Medicare Advantage plan to go back to Original Medicare, you can enroll in a Part D prescription drug plan from January 1st to February 14th each year. Some people may also qualify for a Special Enrollment Period. For example, if you are losing your current prescription drug coverage for some reason, you may qualify for a Special Enrollment Period.

Do I have to worry about Part D penalties?

You might have heard about Part D penalties. What are they, and will you have to pay them? If you are without prescription drug coverage for more than 63 days in a row after you first become eligible for Medicare, you may have to pay a penalty when you finally do sign up for Part D coverage. For each month after those 63 days that you don’t have coverage, you might have to pay another 1% (of the average Part D premium). This penalty is set by Medicare and you pay it on your premium. And you will pay that penalty for as long as you're enrolled in Medicare. So it’s definitely worth it to stay on top of your prescription drug coverage needs.

It’s not all bad news. Not everyone has to pay the Part D penalty. There are two easy ways to avoid it.

  • Mark your calendar. Enroll in a Medicare Part D prescription drug plan as soon as you are eligible. Whether you’re new to Medicare or just switched back to Original Medicare, timing is important.

  • Be the exception to the rule. If you have prescription drug coverage from a source other than Medicare—called creditable drug coverage—you might be able to avoid paying the Part D penalty. Creditable drug coverage might come from an employer, union or other non-Medicare source.

A few notes about creditable drug coverage: If you have prescription drug coverage from another source, get to know your benefits administrator. He or she can give you important information that can help you avoid the Part D penalty. This may include:

  • If you’ll still have prescription drug coverage when you become eligible for Medicare.

  • Whether or not your prescription drug coverage is considered creditable by Medicare.

  • What type of proof you need to give Medicare to show that you have creditable prescription drug coverage.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 

 estate planning, medicare, medicaid, massachusetts, health care

 

 

Tags: Medicaid, MassHealth, family, elder care, elder care journey, Nursing Home, Elder Law

Massachusetts Elder Law Attorney | Why Planning Now Could Save Your Bacon Later

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Wed, Sep 12, 2012

In earlier blogs, I've told you about giving away assets, and why that can be a pretty risky move. "Sure," you might say, "it's only dangerous for people who need to qualify for Medicaid in the next 5 years. That won't be my dad; he's doing just fine at home." And you may be right - for now.veterans benefits, VA benefit

Most housebound and assisted living veterans do not realize that their health care needs and expenses are NOT going to stay the same very long. Unfortunately, the aged and frail veteran has begun an end-of-life journey that is reasonably foreseeable.

A housebound or assisted living facility resident has perhaps a 90% probability of needing to go on to skilled nursing home care within two to three years. The cost of skilled nursing home care can run from $5,000 to $10,000 per month. The veteran could be in the nursing home for several years prior to death. It is highly likely that the veteran's family will need to apply for Medicaid benefits to pay the nursing home costs.

Medicaid now has a penalty period of ineligibility if a senior has given away any assets within five years of applying for Medicaid assistance. This means that if you were to ignore our advice and transfer assets to qualify for Aid and Attendance, you could become ineligible for Medicaid.

As you can now see, most of VA claimants, if they live long enough, will need Medicaid in less than five years.

Beware: Any time a veteran gives away assets to qualify for VA benefits, the veteran is setting a Medicaid penalty Time Bomb! A VA-accredited elder law attorney who has substantial experience with the Medicaid eligibility rules for our area can tell you if you're putting yourself in harm's way. If you know you need to do some planning for eligibility reasons but aren't sure what to do, call my office at (781) 237-2815 - we can offer you direction.

A VA-accredited elder law attorney is a trustworthy guide for the client and his or her family for all of the significant issues that may arise as the senior travels this path. It our job to counsel you so that you may be never out of money and out of options as you take the elder care journey.

We are available to assist you and your family to avoid the land mines that lay along the elder care pathway. Our goal is to provide my clients who face long-term disability care with:

- The financial benefits;

- The quality health care options;

- Peace of mind; and

- Preservation of personal dignity.

If you are a senior facing long term care, or someone who loves a senior dealing with long term care issues, then contact us today at (781) 237-2815 for a free no-obligation discussion of your heartfelt concerns and care-giving burdens.

For more information go to www.SullivanVeteransReport.com, which contains important information on the “Hidden Benefit” available to veterans and their spouses, and the steps you should be taking right now to find out if your loved one qualifies.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops. Call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: Estate Planning, Elder Law, Medicaid, veterans benefits, elder care journey, VA benefit, Massachusetts

Seniors Behind the Wheel | Massachusetts Elder Law Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Thu, Sep 06, 2012

Driving is always a sticky issue with aging parents and family members.  Mom or Dad’s refusal to acknowledge physical and mental limitations can put their lives at risk but if they get behind the wheel of a motor vehicle they can put others at risk.  A recent New Jersey wrongful death lawsuit caught my eye.  It’s a nightmare scenario for every family.seniors driving

Steve was driving himself and his caregiver, Mona, to the diner.  Mona got out of the car before Steve attempted to park.  He stepped on the gas a little too hard and went up on the sidewalk, pinning Mona between the car and the wall.  She lost her leg and then she died a short while later. Her family filed a personal injury and wrongful death lawsuit against Steve.

Both sides agreed that Steve was negligent in causing the accident and Mona’s injuries and subsequent death.  However, the issue at trial was whether Mona was an employee or an independent contractor of Steve’s. If she was an employee, then her family could not sue Steve, but would be limited to a recovery in Workers’ Compensation court, which has a cap on monetary damages.  A civil lawsuit has no such limitation.

Most people who hire aides directly, rather than going through an agency, pay the aides by cash or check, with no paperwork as to the scope of the work and the dates and times performed.  The aide usually doesn’t report the payment as income and pay any taxes.  Likewise, the senior doesn’t pay any payroll taxes or maintain workers compensation insurance but treats the aide as an independent contractor.

We have written about the dangers that lack of documentation causes for Medicaid purposes.  In this case, the attorney for Mona’s family argued that no payroll taxes or contract meant Steve was not her employer.  A written contract is always a good idea, so I am not convinced the lack of one indicates the type of relationship that existed. 

Steve’s attorney, however, had a tough argument to make in favor of an employee/employer relationship.  Although not clear from the newspaper accounts of the case, in all likelihood Steve didn’t carry workers compensation insurance. He paid Mona $100 a day, probably cash, to keep cost down.  In my experience, I have yet to run across someone who hired an aide and purchased the insurance.

In the end, the jury sided with Mona’s family and awarded $525,000.  It is unclear how much of that was covered by Steve’s automobile insurance company and how much he will have to pay out of his pocket.  You might think his problems stem from the choice his family made in not treating Mona as an employee and paying the taxes and insurance.

But, the bigger mistake is in allowing Saul to get behind the wheel.  Not an easy issue for families to tackle but a necessary one that could have life and death consequences, as it did for Steve and Monna.

To gain free online access to the Complete Alzheimer's Resource Kit, which contains care tips as well as other useful information on Alzheimer’s disease, please visit www.BostonMemoryLawyer.com

 

Click Here to Download  The Alzheimer's Resource Kit

 

At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.

We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com.

 

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: Estate Planning, Nursing Home Costs, Alzheimer's Disease, Medicare, Medicaid, Nursing Homes, elder care, estate, elder care journey, senior drivers, senior driving

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