Some Practical Steps You Can Take to Protect Your Loved Ones from Elder Abuse

Every year, the United Nation marks a special day to raise awareness of elder abuse, which is very prevalent, especially among individuals over the age of 60 with dementia.

America is, at heart, a nation built by patriots, immigrants and pioneers. At our core, we are people who are willing to fight and die for freedom.  We cherish our freedoms, especially the freedom to live independently.  Most adult children want to keep their parents at home as long as possible. Out of love and respect, they may hesitate to ask personal questions about their parents’ finances, legal documents, medical conditions and care, and who is coming in and out of their parents’ home when their adult children are not present.

The ugly truth is that unless a care plan is put into place and carefully managed, with appropriate checks and balances, staying home alone can be isolating and can expose an individual, especially one living with dementia, to a heightened risk of abuse.  I am not just being alarmist.

Consider what happened in the actual case of Sally Dinoia. In the matter of the guardianship of Sally Dinoia, Docket No. A-5276-17T3 (N.J.App.Div. December 26, 2019). Sally was 85 years old, widowed with several children, and was living in her former marital home with her adult son, John.  John had cared for her for years.  Someone raised a concern about Sally’s well-being and Adult Protective Services (APS) investigated. She was noted to have poor hygiene, fungus and bug bites on her body.  Bedbugs were discovered in her home and on her person. An exterminator was called to treat her home, but John refused to let the exterminator inside. John interfered with the attempts of a physician to examine his mother and filed litigation against APS and the local police, which were both responsible for various aspects of the investigation into his mother’s welfare.

The APS failed to investigate Sally’s finances as required. Eventually, a guardian was appointed for Sally, and that guardian was faced with the colossal task of opposing John, who was extremely litigious, in court. In the process, counsel for the guardian racked up a legal bill of over $43,000, which Sally had no money to pay. APS, which did not investigate as it should have, was ordered to pay the bill, resulting in an appeal brought by APS to overturn the judge’s order requiring APS to pay Sally’s bill.

As you can see from Sally’s case, trying to clean up the elder abuse can be like trying to wade through quicksand.  A much better option is to put a plan into place at the first moment you are reasonably sure that something more than ordinary aging or an adjustment reaction to a stressful situation is responsible for your aging parent’s memory or behavioral issues.

Here are some important steps you can take to prevent elder abuse before it happens.

  • Make sure you have legal authority to act on behalf of your aging parent. Like insurance, it’s a bad idea to put off getting it until you need it. If possible, get a power of attorney in place for financial or medical purpose.  If your parent can no longer sign a power of attorney or is unwilling to do so, apply for a guardianship or conservatorship without delay.  Don’t wait until after there is a problem to get legal authority in place.
  • Review their finances. This includes their health insurance and their eligibility for public benefits, such as the Veteran’s Improved Pension and Aid and Attendance and Medicaid. Is your parent signed up for Medicare when first eligible? Does he or she have a Medicare supplemental plan or a Medicare Part D plan?
  • Work with their doctor to put a care plan and supports in place. The goal is to limit the parent’s decline.  You can’t make your parent young again, but you can help them live their best life at home as long as possible.  Enlist the services of a geriatric care manager to make sure that the home environment is safe and to make appropriate referrals to the services and supports your parent needs.
  • Get affordable care in the home through an agency. I am a fan of home health care agencies.  They screen the care providers, handle payroll, income tax reporting, and are licensed and bonded.  They can send a replacement quickly if needed.  Having multiple team members in the home can provide your aging parent with social stimulation and enough oversight.  There is also safety in numbers.  An aging parent is less likely to be a target of abuse if he or she is surrounded by several other individuals. A care team by its nature can provide a built in system of checks and balances.
  • Work with an elder law attorney. They can help you ensure that your parent has the best care and that your parent is able for that care for the rest of his or her life, using public benefits if necessary.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Getting the Most out of your ABLE Account Based on the SSA’s New Guidance

ABLE Program in New Jersey

The Social Security Administration released a new update to its Procedure Operations Manual System, (POMS), effective March 13, 2020.  This is a very important development because the POMS is the manual used by employees of the Social Security Administration in processing claims.  The new provision gives additional information about the types of expenses an ABLE account’s proceeds can be spent on, for a qualified, disabled beneficiary, while still retaining that beneficiary’s eligibility for Medicaid and other means-tested public benefits, like Supplemental Security Income (SSI), Section 8 housing benefit. Heating assistance (LIHEAP), and food stamps (Supplemental Nutritional Assistance Program (SNAP)).  In particular, the new guidance clarifies that food purchased with an ABLE account’s proceeds can be a qualified disability expense.

What is an ABLE account?  It’s a special, federal income tax qualified disability savings account, the balance of which is disregarded in computing eligibility for public benefits, so long as it remains below set levels.

Who can benefit from an ABLE account? Only a qualified disabled beneficiary can benefit from an ABLE account. A qualified disabled beneficiary is an individual who is eligible for Supplemental Security Income (SSI) on the basis of blindness or a disability, where the individual’s blindness or disability was incurred prior to the age of 26.  Another route to qualified disabled beneficiary status is entitlement to disability insurance benefits, childhood disability benefits, or a disabled widow or widower’s benefit on the basis of a serious, disabling condition that began prior to age 26.

Are there other exceptions to qualify for an ABLE account? An individual may be eligible for an ABLE account on the basis of a certification that the individual has a medically determinable impairment meeting the statutory criteria for a disability determination (i.e., marked and severe functional limitations) or is blind, and the blindness or disability was incurred prior to age 26.

Distributions can be made out of the account for certain qualified disability expenses. To the extent that the balance in the ABLE account:

  • Does not exceed the $100,000 SSI limit, and
  • Distributions are made in the same calendar year as they are used to purchase qualified disability expenses for the disabled beneficiary, the income from the qualified distributions may be offset by deductions for the qualified disability expenditures paid in that same calendar year.

It is important to note that if the qualified disabled beneficiary does not receive SSI, then he or she is not subject to the $100,000 SSI threshold, but the qualified disabled beneficiary must ensure that the funds in the ABLE account remain less than the 529 contribution amount for his or her state of residence.

What are the benefits of an ABLE account? The benefits of an ABLE account come with the quid pro quo that the funds on deposit in the ABLE account after the death of the disabled beneficiary and after the payment of all outstanding qualified disabled expenses will be subject to a Medicaid payback for all expenses incurred by the state (or states’) Medicaid agency on behalf of the disabled beneficiary after the date of establishment of the ABLE account.

* Please note that during the period of uncertainty due to the COVID-19 pandemic, there may be delays in communications and services from ABLE PLAN providers, due to remote work arrangement and contingency work plans. However, basic services and information should be available through online access.

What are qualified disability expenses? These may include:

  • Education
  • Housing
  • Transportation
  • Employment training
  • Assistive technology
  • Personal support services
  • Health, prevention and wellness
  • Financial management and administrative services
  • Legal fees
  • Expenses for oversight and monitoring
  • Funeral and burial expenses
  • NEW: the purchase of food is now considered a non-house related expense

Why is the new guidance important? While much of the new guidance reiterates settled rules, the new guidance is important because it clarifies that food may be purchased with funds from an ABLE account and such purchases will be treated as a non-shelter related qualified disability expense and disregarded for purposes of determining eligibility for the SSI (and other means-tested federal benefits).  The distribution from the ABLE account, to the extent used to purchase food, will not be considered in kind support and maintenance and therefore, will not place the individual in excess of the SSI income limit.  The ABLE account beneficiary will not be disqualified for the SSI benefit and will not suffer a reduction of the SSI benefit amount due to in kind support and maintenance.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

National Caregivers Day, February 21, 2020: An Expression of Appreciation

national caregiver Day 2020

These days, it seems that everywhere I turn, I find caregivers working with unselfish devotion to the people they serve. Caregiving can be formal (i.e., health care professionals working in the hospital, long-term care and hospice industries) or informal (i.e., family members providing care in the home) but it is always an act of service. In honor of National Caregivers day and all the hard working caregivers serving seniors and the disabled, here is a special blog to express my appreciation and thankfulness for all you do!

Working with individuals with dementia can be very physically and emotionally demanding.  That is why self-care is so important.  While paid caregivers may have access to training and co-workers to support them, unpaid caregivers seldom have these resources. Fortunately, for those seeking guidance on how to identify and redefine their needs and responsibilities as unpaid caregivers in the home, there is a helpful book filled with practical tips on the subject. Your Caregiver Relationship Contract (2019), by Debra Hallisey, is available through Amazon.  Her book offers a peaceful framework for caregivers to change an established relationship with a parent who still regards the child caring for them as their little one, not an adult with needs and obligations of her own.  Topics covered include how to deal with guilt and anger, setting boundaries, building a support network and strategies for difficult conversations. Here are some of the tips Ms. Hallisey shares:

  • Start important conversations in the car or while sharing an intimate experience with the person you are caring for, such as baking together or combing hair.
  • Bring up a topic up multiple times in varied settings and eventually your loved one’s no may become a yes.
  • Use “I” words (I need help) and don’t blame.
  • When setting a boundary, be honest and direct. Start the conversation with an expression of caring.
  • Use words that validate your loved one’s choices. Words and tone of voice matter.
  • Compassion fatigue is real. Combat it through self-care.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Minimizing Elder Financial Abuse

Sad senior woman after quarrel

It seems like every month, there is a news broadcast of a new form of elder financial abuse.  Statistically, it is very prevalent, especially among individuals with dementia who are residing alone in the community.

Unfortunately, elder financial abuse comes in many forms. One version is where a trusted advisor, family member or caregiver with whom the senior has a relationship takes the senior to an attorney to execute a new Last Will and Testament, changing the existing estate plan in favor of the trusted individual.  These are difficult cases to enforce because by the time the fraud is discovered the victim is deceased.

Another variety of elder financial fraud is tech support fraud, where there is a pop up on the senior’s computer screen that routes the victim to a bogus website to input information. Someone calls the senior and asks the person to send in money for software that doesn’t exist. The perpetrator remotes into the computer and tells the senior to log into the bank account. Then the perpetrator minimizes the window and withdraws funds without permission from the senior’s account. Some con artists may pose as representatives of well-known industry giants such as Microsoft and Google.

There are romance scams where someone pretends to be in a relationship and convinces the senior to send money. There are lottery scams and prize scams where a senior is asked to pay money to get the winnings.  But the majority of elder financial abuse the SEC sees is theft.  These cases are hard to put together due to the challenges of gathering the evidence.

In many cases, the victims may not even realize they have been victimized, or they may have had a long term relationship with their trusted advisor or family member and just convincing the senior to speak with an investigator or another attorney is problematic.  It may be easier for seniors to talk about financial abuse by emphasizing that this also happens to younger people and to focus on protecting yourself. Reassure them that their fear of compromising their appearance of competency and independence if they complain will likely not materialize.  Do not hesitate to report the incidents to the authorities. This is an area of enforcement which the Securities Exchange Commission and other federal agencies are currently focusing on and there are a lot of resources at both the state and local levels.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Medicare Open Season – Important Deadlines

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The Medicare Open Enrollment window for 2020 runs from October 15, 2019 until December 7, 2019. Individuals who prefer not to have responsibility for out of pocket costs might consider enrolling in a Medicare Part F plan, which covers most deductibles and out of pocket costs. It is critical to enroll in such a plan during the upcoming open season window, because Part F plans are being phased out and will no longer be available to Medicare enrollees who are not enrolled in such a plan, or have not elected to enroll, as of December 31, 2019.

Medicare Part C enrollment will also be phased out for individuals who have not enrolled in a Medicare Part C plan as of December 31, 2019. Medicare Supplemental Plans C are private plans that deliver Medicare Part A and B services through a private insurance company.

The bottom line is that seniors and disabled individuals who will be eligible for Medicare A prior to January 1, 2020 and who prefer Medicare Part C or F coverage will need to sign up for these plans during the upcoming open enrollment period.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.