OHIO ELDER LAW BLAWG

VA Releases New Medical Forms In the Hopes of Faster Claims

The Department of Veterans Affairs (VA) has promulgated 68 new forms, some of which will hopefully speed processing of Vet’s disability pension claims, among other claims. Pension claims include claims for Aid and Attendance and Homebound benefits, of which many of our clients are able to take advantage.

The forms can be completed by private physicians, eliminating the need for a VA clinic examination in certain circumstances. “VA employees will be able to more quickly process disability claims, since disability benefits questionnaires capture important medical information (which are) needed to accurately evaluate Veterans’ claims,” said Secretary of Veterans Affairs Eric K. Shinseki. “Disability benefits questionnaires are just one of many changes VA is implementing to address the backlog of claims.”

New disability benefits questionnaires (DBQs) are meant to guide physicians’ in their medical findings. Hopefully this will ensure the VA has complete and appropriate medical information needed to make a decision in a reasonable time. These forms are downloadable from the VA website. Additionally, DBQs give veterans and active duty service members the option of visiting a primary care provider in their community instead of completing an evaluation at a VA facility. The streamlined forms use check boxes and standardized language so that the disability rating can be made accurately made.

The reason the forms are so numerous is because there are forms for individual medical conditions a Vet may experience. Some are specific to a sinmost condition while others can be used for several related issues. Click here for a list of the conditions.

Todd W. Bartimole

 

Nicholas Flamel and the Prepaid Funeral

I recently recommended to a client that he prepay his and his wife's funeral.  Not just preplan, but prepay. I was met with great resistance to this idea. Often, as in this case, the resistance generally boils down to one of two issues:

1. prepaying for my funeral is not good financial sense

2. I am not going to preplan my funeral, that's morbid!

Both may be true. However a prepaid funeral plan should still be considered, and even if one decides not to prepay, a preplanned funeral should still be considered.  

First of all, as to the morbidity of the thing, we all must understand and accept that for the last several millennia, everything that was born eventually dies.  I know this is news to everyone, but it's true.  Even Nicholas Flamel, who famously created the the Elixir of Life (a potion that prevented death as long as one continued taking it) in Harry Potter, ends up dying.  As I recall, when Flamel decided to stop taking the elixir of life, he took enough to prepay and preplan his funeral.  (This clearly was what Dumbledore meant when he said Flamel took enough of the elixir to “get his affairs in order.”)

Anyway, a preplanned funeral can be a gift to those who you leave behind, because it saves them the guesswork of what you would have wanted.  A prepaid funeral allows them to not have to worry where the funds are going to come from.  It also allows you to do this planning in a time of relatively low stress, as opposed to the time of high stress immediately after a spouse or parent has died.  Funerals can be expensive, and buying one when under stress may lead to impulsive purchases, and excess spending.  It will even allow you to shop around.  With a married couple's funerals often costing as much as a new car,  shopping around may be a good idea.

The question of whether it is a sound financial decision for you to prepay a funeral is a question that must be answered on a case by case basis.  When spending down to qualify for Medicaid, it is typically a good idea. For some, it is better to have the funds invested and earning some financial return.

There are some resources available if you are considering a prepaid funeral. The Funeral Consumers Alliance is that sells an end-of-life planning kit, "Before I Go: You Should Know." The Consumer’s Alliance is a a nonprofit, educational organization.  The International Cemetery and Funeral Association website has additional information and Federal Trade Commission offers publications that can help when planning a funeral: "Funerals: A Consumer Guide." And "Paying Final Respects: Your Rights When Buying Funeral Goods and Services."

You also can call us if you have other questions.

 

Careful, Medicare's Annual Open Enrollment ends Dec. 7, not Dec. 31

Every year, people with Medicare should look into whether they should change the health and drug plans in which they are currently enrolled. This year, this Open Enrollment period is starting earlier than in prior years, (on October 15).  However, in what may catch people unaware,  it is ending sooner than usual.  This year open enrollment closes December 7.  This may be confusing to people who are used to seeing a December 31 end date for open enrollment. 

"Part D" plans help Medicare Beneficiaries pay for prescription drugs.  

"Part C" is the Medicare "Advantage" plans, which are managed care organizations [Medicare PPO (preferred provider organizations) and HMO's (Health Maintenance Organizations)]. Beneficiares may stay with their current plans, chnage plans, or go back to the Original Medicare program.

Its important to review your current plan to determine whether switching makes sense. Plans can and do make changes from year to year, so it is important to review your current Medicare choices, and decide what is best for you. 

Its also important to do this by December 7th, 2011.  

 

Micky Rooney: the tip of the iceberg in elder abuse and exploitation

Micky Rooney recently testified at a congressional hearing regarding his own experience with abuse and exploitation of the elderly.

Rooney testified that he felt trapped and scared.  For years, he said he was controlled by a stepchild who took his identification, awards, and took control of his finances.  Rooney waited several years to act, feeling like he was a prisoner.  Finally he sought legal intervention when he obtained a restraining order over his alleged abuser. (CNN story)

This problem is not necessarily rare.  With the downturn in the economy, children who are not making ends meet because of their own financial problems are relying on parents for financial assistance.  Sometimes those needs take over the relationship and sometimes the relationship becomes physically abusive.

A recent national study showed that about 14% of older americans were neglected, abused, or exploited.

In one case our firm worked on, a caregiver working for a home health care agency worked for an elderly woman who began to rely on the caregiver.  Exploiting the elderly woman's dependence on her, the caregiver got a power of attorney from the elderly woman, and used hundreds of thousands of the client's funds for herself and friends.  A concerned child living out of town alerted attorneys and the police. An intervention occurred, and we filed suit to recover the funds from the caregiver and the agency. The woman was sent to prison and funds were recovered from the home health agency after a suit was filed.

Financial abuse can be overt or subtle.  When subtle, the elderly person may think that he or she is being nice by providing funds to someone who is in need.  When a closer look is taken, the transaction involves an abuse of the relationship.  Often the elderly person is dependent on the person exploiting the elder, and the power in that relationship creates the opportunity for abuse.  Sometimes it is not about money, but about mental or actual physical abuse, or neglect of a loved one.   

Unfortunately in our current political climate, funding for protecting vulnerable elderly is limited, and often falling.  Sentaor Herb Kohl of Wisconsin sponsored a bill that will create an office on elder justice.  The hope is that the office would tighten standards for reporting and defining elder abuse, coordinate the patchwork of services available to address elder abuse, and assist states in investigation of abuse, neglect, and exploitation cases.

If you believe someone is being abused, neglected or exploited, please call us for information and advice as to how to remedy the problem.

 

Tsunami has Especially Severe Consequences for the Elderly and Ill

 

I spent a little time this morning wondering how the elderly and disabled were doing after the Tsunami.  It appears as though hospitals were in its path, one hospital's first floor was ruined, and unfortunately the first floor kept all of the food and many supplies.

One article I read noted that "Much of the concern is focusing on of the elderly. At Shintona, about 90% of the victims were described as old, suggesting this might become a defining characteristic of the disaster."  The article noted that some elderly in nursing homes were dead or missing.  The care manager, Kiyoko Kawanami, of one of Miyagi Japan's first old people's homes she was able to confirm only 20 of the 90 residents were safe. "We don't know what happened to them. The tsunami hit while we were trying to organize an evacuation," she said.

There are already a number of articles engaging in hand-wringing over what could have been learned and was not in the aftermath of the the 2004 Tsunami, which hit Thailand with incredible devistation.  I guess there is always room for improvement, but it is hard to see how much of this devastation could have been fully avoided after such an incredible natural disaster.

Among a few interesting ways people can donate, Apple is accepting Red Cross donations through iTunes.  

A few links to articles:

http://www.newser.com/article/d9lutaro0/sick-elderly-face-double-misery-after-japanese-tsunami-destroys-hospitals-along-the-coast.html

http://www.guardian.co.uk/world/2011/mar/13/japan-earthquake-tsunami-survivors-grief

 

Options for Estates of 2010 Decedents

    The new law regarding Estate taxes signed by President Obama makes two different options for the beneficiaries of estates of those dying last year (2010). 

   Congress reinstated the estate tax (which had been repealed in 2010) with a $5 million exemption and a 35 percent tax rate for 2010. Executors must decide whether to  elect out of the tax for 2010. 

     If the personal representative elects to opt out, there will be carryover basis rules which apply to the estate beneficiaries for income tax basis purposes. Beneficiaries of large estates (sorry Steinbrenner kids) can be forced to pay capital gains taxes on appreciation of assets from purchase through the time of the decedent's date of death.  In other words, there will be an income tax bill, but no estate taxes. If no election is made the $5 million exemption and 35 percent rates will apply for 2010 decedent's estates. In this case the basis of the  inherited property will be the fair market value of the property at the date of death. 

    For estates worth less than $5 million, electing to pay estate taxes may be advisable, as the tax will be zero and you will get a step up in basis on the stock.  On the other hand, estates with significantly more than 5 million may want to elect out of the estate tax, and either pay or postpone events which would cause capital gains. 

Talk to us or your tax adviser for information about your particular situation.

Elder Law Office of Todd W. Bartimole  

Facebook: A new tool for "grandparent scam"

Watch those privacy settings...

The Better Business Bureau of Northeast California is warning older adults about a telephone scam that preys on grandparents by duping them into thinking they assisting grandchildren in an emergency. 

 

In the scam, the grandparent gets a call from a young person claiming to be the grandson or daughter who is in legal trouble out of the country and needs needs emergency cash.  To stress the urgency, calls are usually made in the middle of the night, and the scammer insists that funds be sent by wire or overnight delivery.  While in previous scams grandparents could test the scammer by asking personal questions only certain people could answer, such as the name of a childhood pet, their nickname, or the college they attended, the new scammers use information garnered from social networking sites.

 

The bureau said a Sacramento grandmother was contacted this week by young woman who claimed to be her granddaughter. The girl said she was in trouble in Canada and needed the victim to wire her $4,500 to get out of jail.  Even after asking several questions, the grandmother said she was absolutely convinced the girl was her granddaughter.  The BBB said the scammer was looking at a Facebook page the real granddaughter had posted, and simply reading off dozens of facts about the family, addresses, and where she went to college.  The information was easily accessible because the granddaughter's Facebook privacy settings weren't high enough, allowing her account to be viewed by just about anyone.

Full Story

The Estate Tax and Earning Money the Old Fashioned Way

Recently, John Raese, a billionaire using his own riches to try to win a US Senate seat in West Virginia, declared “I made my money the old-fashioned way — I inherited it.”

Lucky him.  This year, 2010, is the best year to inherit money, because there are no US taxes on inheritance.  Unless Congress acts, next year will be an entirely different story. 

Next year if you die with over one million dollars, and that includes life insurance, your estate will be taxed.  Without any estate planning, the amount over one million dollars will be taxed at 41-55%.  Being dead, this may not be a concern of yours, but your children will be somewhat less able to make the same claim as John Raese did.

Even with the recent fall of real estate values, it is very common for people to have over one million dollars at death, especially when considering life insurance. Take a look at what you have:  house, cars, IRA/401k’s, savings, and insurance.  As people come into my office and I discuss this, it surprises many of them to discover that they will be millionaires at death, and subject to the Estate Tax in 2011.

 There has been discussion of ending the estate tax, but I do not expect that to happen.  My belief is that in our current situation, we need an estate tax in this country.  The accumulation of incredible wealth by a very few, as well as the mounting federal deficit, warrant a federal estate tax. Our income tax policy since the 2001 tax cuts has been too generous to the super wealthy.  In 2007, the top 1 percent of American earners received 23.5% of the nation’s pretax income.  This is about two and a half times the 9 percent that brought in that much in 1976.  Clearly wealth is accumulating at the top.  Unfortunately, during the Bush years 2002-2007 the median income for non-elderly American households went down and the poverty rate rose. 

Having an estate tax acts as a buffer on the over-concentration of wealth.  The question is, at what level?  One million dollars ain’t what it used to be, and the million dollar exemption in 2011 is too low, and will affect too many families. In 2009 the first 3.5 million was exempt, which meant that with proper estate tax planning, a couple could shelter 7 million dollars, which is a nice inheritance to receive tax free.  Probably this is a good place to start.

The way things stand, there are many families who should be looking at their estates, and thinking about having a review to determine whether they will be affected by the Estate tax.  Ohio has an estate tax, but because its tax rate maxes out at 7%, it is not as much of a concern.  However, good trust planning can still save children over $20,000 in taxes if trust planning is done between spouses.

This year is coming to an end, and its a good time to take a look at your current assets, and to decide whether its time to have an attorney review your estate plan.  Please call us if you would like to sit down with us for a review.

Does this Soda Make Me Look Old?

Is America's love affair with the soda killing us off early, and if so, why?

You might be surprised to learn that a new study indicates it may not be the sugar, aspartame, or splenda, but added phosphorous that is causing some major health problems. 

Science Daily has published an article which indicates the increase in use of phosphorous in processed food leads to premature aging, may "increase the prevalence and severity of age-related complications, such as chronic kidney disease and cardiovascular calcification, and can also induce severe muscle and skin atrophy."

The studies were done on mice, not humans. I am thinking this needs a bit more study. Read the full article here.

The Middle Aged Brain Ain't So Addled After All

There are many myths that have developed over the years about aging and brain health, but new studies and the use of technology is showing us that what we once thought about middle age brain health decline are largely incorrect. 

Here are ten myths about the aging brain, which have proven not to be true, excerpted from an article in the Huffington Post this morning.  Link is at the end:

1 MYTH ONE: We lose 30 percent of our brain cells as we age.

For many years, even the most eminent neuroscientists thought that millions of our brain cells simply shriveled up and died as we got aged. But new brain scanning studies show that, as long as we're healthy, we actually keep most of our brain cells for as long as we live.

2. MYTH TWO: Our brains stop developing in our 20s.

It's now known that our brain continue to develop, change and adapt. Growth of white matter and brain connections that we gain through years of experience allow us to recognize patterns faster, make better judgments and find unique solutions to problems. Scientist call these traits cognitive expertise and they reach their peak in middle age.

3. MYTH THREE: Midlife crises are inevitable.

Long-term studies now show that people find middle age the most satisfactory time in their lives. In fact, brain changes in midlife make us more optimistic, not less. And recent research shows that those who have emotional upheavals in midlife have, in many cases, had similar emotional distress at other times in their lives.

4. MYTH FOUR: The empty nest syndrome.

More recent studies of real people -- men and women -- find that our lives, and our moods, often improve when the kids leave home.

5. MYTH FIVE: Our brains operate best in our 20s.

In fact, our brains, in most important areas, reach their peak in midlife. We get better in a whole range of areas, including inductive reasoning, vocabulary, judgment, even the ability to get the "gist'' of an argument and find solutions. There is evidence that we can also become more creative as we age.

MYTH SIX: Our brains start to fade away.

Actually, brains in middle age begin to "power up'' not down. In some cases, we learn to use two parts of our brain instead of one to solve problems. And it is those with the highest cognitive abilities who learn to use their brains this way.

MYTH SEVEN: Dementia is inevitable.

On the contrary. We now have enough people living long enough to show that dementia is not inevitable. There are increasing numbers of what are called "pristine agers,'' whose brains remain largely intact well into their 90s.

MYTH EIGHT: There is nothing we can do to improve our brains.

New research shows that middle age is a time when the brain is "on the cusp,'' and that what we do matters, even what we think matters. There is increasing evidence -- not hype but solid evidence -- that shows that such things as exercise, education and even what we eat does make a difference. Since we now know that we do not lose whole swaths of brain cells, there is a full-tilt effort to find out how to keep those brain cells intact.

Those who research the ingredients in red wine, for instance, are racing to put it in a pill. New studies in animals and humans show that new baby brain cells are born in the brain, with something as simple as aerobic exercise.

And those who research how adults learn have found that one way to keep our brains alive and growing is to actively explore ideas -- and people -- that challenge our view of the world.

This can create what Jack Mezirow, professor emeritus at Columbia Teachers College, has called a "disorienting dilemma'' in our minds that, as another researcher put it, "shakes up the cognitive egg,'' prompting our brain cells to wake up, reconfigure and -- with a little luck -- rejuvenate.

Full article

I heard a story this morning on NPR about this, and it confirms what many of you have read on these pages, that exercise and diet help keep you healthy, brain and body.  In addition, it is becoming clear we can tease our brain into growing by doing new things, looking at things in new ways, and challenging our brain to work hard at something it normally does not do.

Maybe I will try to understand my son's calculus textbook tonight.