On December 13, 2016, the President signed into law the 21st Century Cures Act. Section 5007 of this Act affects the Special (or Supplemental) Needs Trusts, dealing specifically with the d(4)(A) Special Needs Trusts. A d(4)(A) Special Needs Trust is a trust created for the sole benefit of someone under the age of 65 who is disabled. The d(4)(A) Special Needs Trust is established by the beneficiary’s parent, grandparent, legal guardian, or the court, and it is funded with the beneficiary’s own assets. This type of trust must include repayment language, which states that any remaining assets at the beneficiary’s death must go to any state Medicaid agency (up to the amount paid by the state for the beneficiary under the Medicaid program).
For d(4)(A) Special Needs Trusts created before December 31, 2016, the trust has to meet the following requirements to be valid:
- The trust contains the assets of an individual who is under 65 and disabled.
- The trust is established for the benefit of the individual through the actions of a parent, grandparent, legal guardian, or a court.
- The State will receive the remaining amount in the trust after the individual dies up to an amount equal to the total Medicaid assistance paid on their behalf.
With the new Act signed into Law, an additional provision has been added to the requirements for d(4)(A) Special Needs Trusts (dated after December 31, 2016). Now, the trust can be established for the benefit of the individual through the actions of the individual, parent, grandparent, legal guardian, or a court. All other requirements still apply. This is good news for those who may utilize this type of trust for their disabled loved ones! Our firm specializes in Trusts and Estates. We would be happy to help you create this trust for yourself or a loved one who is under 65 and disabled.
Previously, many people thought that flushing unwanted medication down the toilet was a safe and easy solution. Now, flushing unwanted medication down the toilet is considered the least desirable of all alternatives. Recent U.S. geological studies have found traces of estrogen, painkillers, antidepressants, blood pressure medicine, etc. in water samples from 30 states. Studies have linked the hormone exposure to reproductive defects in fish. Also, they have linked the environmental exposure to antibiotics to the development of drug-resistant germs.
Help to protect our rivers and waterways by disposing of unwanted medication in the proper locations. The Allen County TRIAD sponsors a year-round medication collection program with the support of local police and sheriff’s departments. In Allen County, the collection boxes are available at the following police and sheriff posts:
Huntertown Town Hall
15617 Lima Road
Hours: Mon-Fri; 8:00-5:00
Indiana State Police Post
5811 Ellison Road
Hours: 24/7 in lobby
One million Americans age 65+ report having been abused by a loved one or someone they depend on for care. Only 1 in 14 incidents of elder abuse are ever reported to authorities. And only 1 in 25 cases of financial exploitation are ever reported, meaning there may be at least 5 million financial abuse victims each year. Elder abuse is becoming more and more common. As seniors age and become more physically frail, they are unable to stand up to bullying or fight back. Also, because they may not see or hear as well or think as clearly, this leaves openings for unscrupulous people to take advantage of these seniors. There are several risk factors that can increase the likelihood of elder abuse. Elder abuse can come in many forms:
- Physical abuse
- What? Use of force against an elderly person that results in pan, injury, or impairment
- Signs: Unexplained signs of injury; broken bones; signs of being restrained; caregiver’s refusal to allow you to see the elder alone
- Emotional abuse
- What? Speak to or treat elderly persons in ways that cause emotional pain or distress
- Signs: Caregiver threatens, belittles, or controls the elder; elder rocks, sucks, or mumbles to him/herself
- Sexual abuse
- What? Contact with an elderly person without his/her consent
- Signs: Bruising around breasts or genitals; genital infections; vaginal or anal bleeding; torn, strained, or bloody underclothing
- Neglect or abandonment
- What? Failure to fulfill a caretaking obligation
- Signs: Unusual weight loss, dehydration, or malnutrition; untreated physical problems; unsanitary living conditions; being left dirty or unbathed; unsafe living conditions; desertion of elder at public place
- Financial exploitation
- What? Unauthorized use of an elderly person’s funds or property
- Signs: Significant withdrawals from his/her accounts; items or cash missing from elder’s home; suspicious changes in estate planning and financial documents; unnecessary services, goods, or subscriptions
- Healthcare fraud
- What? Committing fraud by unethical doctors, nurses, or other healthcare providers
- Signs: Duplicate billings for same service; evidence of overmedication or undermedication; evidence of inadequate care even when bills paid in full
If you suspect elder abuse, then you must take preventative measures. Learn more in our next post.
It is difficult to take care of an elderly person with many different needs and infirmities. Both the demands of caregiving and the needs of an elderly person can create situations where abuse is more likely to occur. For a caregiver, the responsibilities and demands can be extremely stressful. This stress can cause a caregiver to burn out, become impatient, or lash out at the elderly person. Some risk factors for caregivers include:
- inability to cope with stress
- lack of support from other caregivers
- substance abuse
- inability to see psychological rewards
These risk factors can lead to high stress levels and cause the caregiver to abuse his/her patients. Nursing home staff may be prone to elder abuse if they lack training, are unsuited to caregiving, have too many demands, or work under poor conditions.
While elder abuse is never excusable, there are some factors that can make an elder at greater risk for elder abuse. Some of these factors include:
- grave illness
- serious dementia
- social isolation
- history of domestic violence
- history of elder acting as an abusive relative
- a senior’s tendency toward aggression
Because of these risk factors (for caregivers and for elders), elder abuse may happen, though unintentionally. The caregiver may be pushed beyond his/her capabilities, causing him/her to strike out or ignore the needs of his/her patient. Knowing the risk factors can help prevent elder abuse. However, there are also warning signs to look out for in case elder abuse happens. Learn the warning signs in our next post.
This year is the fifth annual Hot Topics for Indiana Lawyers. The event will be held on September 22 and 23 from 8:30 a.m. to 4:00 p.m. at the Grand Wayne Center, 120 W. Jefferson Blvd. The event will count for 12 CLE credits, which includes 1.5 ethics credits.
Our attorneys, Tracy Troyer and Leah Good, will be speaking at the event on Thursday, September 22. The title of their presentation is “Estate Planners: Medicaid Law.” They will speak with the assembly about the 2016 Indiana law changes regarding Medicaid.
For more information on attending, please check out the Allen County Bar Association website.
There is a new law called “The Senior Savings Protection Act.” On July 1st, Indiana enacted this law which creates new rules and responsibilities for individuals associated with a broker-dealer in a supervisory, compliance, or legal capacity. The Act requires those individuals to take action in certain situations when working with a client who is a financially endangered adult.
A financially endangered adult is defined as someone who is age 65 or older or a younger person who is not able to manage his/her property because he/she is mentally ill, intellectually disabled, or suffering from some other type of incapacity, such as dementia. The triggering events requiring the individual to take action are when he/she has reason to believe financial exploitation of the financially endangered adult has occurred, has been attempted in the past, or is currently being attempted.
If there is financial exploitation, then the individual is required to make a report to Adult Protective Services or to a law enforcement agency and also notify the securities commissioner. After these mandatory notifications are made, the individual may also choose to notify the adult’s immediate family members, legal guardian, trustee, attorney-in-fact, or others who have been previously agreed to in a customer agreement.
Furthermore, the individual can refuse to make disbursements from the adult’s account or from an account of which the adult is a beneficiary if he/she has reason to believe the disbursements will result in financial exploitation. If a disbursement is refused, the individual must notify all parties authorized to transact business on the account as well as Adult Protective Services. However, if the individual believes a party authorized to transact business on the account is involved in the exploitation, that person is not entitled to notification.
An individual is immune from civil liability when acting in good faith under this new law. The commissioner will be making training resources available on these issues on the Secretary of State’s website by September of next year.
Medicare. Medicare can pay some nursing facility expenses if you are eligible and several requirements are met. You must go to the nursing home soon after a hospital stay of at least 3 days. The home (including the wing or part where you live) must be certified as a Medicare skilled nursing facility, and you must need that level of care. Medicare can pay basic expenses for the first 20 days in the nursing home. From day 21 through day 100, Medicare can pay for expenses after you pay a set amount each day (the amount changes every year). Medicare seldom pays any expenses after 100 days in the nursing home.
Medicaid. Medicaid can help pay for nursing facility services if you meet the categorical and financial eligibility requirements. If you are not within the income limits, you might be eligible for Medicaid anyway if your medical expenses are high enough. The Medicaid laws help protect the income and resources of the “at home” spouse of the nursing home resident. Even if you are not eligible for Medicaid when you enter the nursing home, you may find that your personal resources run out soon, and you need Medicaid. This happens to many people so you may want to consider choosing a nursing home that is certified by Medicaid, in case you later need that program’s help. Our attorneys can assist getting you or your loved one eligible for Medicaid if it looks like nursing home care is imminent.
Veterans’ Benefits. Some veterans can get help with nursing home expenses from the Veterans Administration. Some children and surviving spouses of veterans can also get this help. To receive these benefits, you must choose a nursing home that is under contract with the Veterans Administration.
Private Health Insurance. Private insurance might pay some nursing home expenses. Because Medicare pays so little, you should consider buying private insurance that covers long term nursing care. Shop carefully. Some Medicare Supplement policies cover nursing home expenses only after Medicare benefits are exhausted. Yet Medicare law makes it difficult to “use up” your Medicare coverage. As a result, you may be left with a useless insurance policy that never takes effect.
Source: Indiana Laws of Aging by Indiana State Bar Association