The general rule under 42 U.S. Code § 1396p(c)(1) is that any transfer for less than fair market value results in assessment of a transfer of resources penalty. There are, however, exceptions to the general rule. Subsection (c)(2)(A)(iv) is one of those exceptions and it provides that no penalty can be assessed if a home […]
The following links can be used to research health care providers and, if necessary, to file a complaint with State licensing boards and boards of certification: Complaint and Discipline Process for Nurses (Powerpoint by Georgia Board of Nursing) Contact Information For Filing a Complaint with the State Survey Agency (CMS.gov) Do your research about your doctor or […]
Frontline posted a new podcast regarding a race-related murder in Chicago in 1955. That murder resulted in a bill named for the victim that would wind up in the halls of Congress. It was aimed at bringing justice to unsolved killings from the civil rights era. Around the same time, the Department of Justice and […]
The University of Alabama School of Law Director, Elder Law Clinic The University of Alabama School of Law seeks applicants for the position of Director for its Elder Law Clinic. The Director oversees and conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position […]
Elder mistreatment is common in our society, particularly among older adults with cognitive impairment and dementia. Using practical clinical and legal tools, we can look for high-risk situations and prevent abuse, and we can detect abuse at early stages to stop it from getting worse. Led by a physician and an attorney with years of […]
Trust corpus found to be countable ( R.I. Super.) ————————————- Jeanne M. Biagetti established a revocable trust in 1998. According to counsel, it became irrevocable in 2001 when she became unable to manage her own financial affairs. When She applied for Medicaid in 2009, however, the trust was found to be a countable resource and […]
CMS has no obligation to accept an MSP liability allocation without an adjudication on the merits (W.D. Kentucky) In this is Medicare Secondary Payer case, Hadden sought waiver of recovery of a condition payment. After suing to recover for injuries sustained in a collision, Hadden settled for $125,000, in addition to receiving $10,000 in Kentucky […]
Transfer of Partnership Interest Was Not Immediate Gift (TC) —————————————— The tax court was faced with whether gifts petitioners made of limited partnership interests to their adult children during 2000, 2001, and 2002 qualified as annual exclusions pursuant to section 2503(b). The court found that they did not. On September 11, 1997, petitioners formed Price […]
Clear and convincing evidence supported establishment of conservatorship (TN App) —————————————— Petitioners petitioned for the appointment of a conservator for the person and estate of their mother. They alleged that she had dementia, Parkinson’s disease, coronary artery disease, and was unable to make decisions about her health or finances. The Trial Court found by clear […]
A filial responsibility law is one making relatives financially responsible for the care of another. Virtually every state requires parents to support minor children, but most states do not require anyone to support relatives who are over the age of 18. These laws are antiquated and can be traced back to the Elizabethan Poor Law […]
“Right to Live” appeal dismissed as moot (N.J. Super.) —————————————— Rueben Betancourt underwent surgery to remove a malignant tumor from his thymus gland. Although the surgery went well, during recovery, the ventilation tube supplying him with oxygen was dislodged and he developed anoxic encephalopathy which left him in a persistent vegetative state and with other […]
Probate heir has no property right in conservatorship estate (Ga.) ——————————- Opal Stewart was appointed as her father’s conservator. After her father died, she was also his personal representative. Under Georgia law, a conservatorship terminates upon the death of the ward, but the conservator must still petition for discharge. Where the conservator also serves as […]
Cooperative federalism is not license to re-write clear federal rules (Co. App.) Ruth Koehler sued the Department after it terminated her benefits under its Medicaid Home and Community Based Services for the Elderly, Blind and Disabled (HCBS) program. Ruth, an elderly disabled woman, received HCBS as an alternative to nursing home care. Her husband resided […]
Trustee had discretion to assess defense costs to wayward son (Ga. App.) ———————————— Howard McPherson established an irrevocable trust in 1990. At the time, he had four children, Scott, Lisa, Robin, and Eric. An additional son was born to Howard’s second wife after the trust was established. The trust gave the trustee discretion to provide […]
The National Guardianship Association announced a date correction for the following event: Is it Alzheimer’s or Normal Aging Thursday, August 26, 2021 @ 1 p.m. Eastern (12 p.m. Central, 11 a.m. Mountain, 10 a.m. Pacific) Many people confuse normal aging memory issues as early warning signs of Alzheimer’s and dementia. Understanding the differences can prevent a great deal […]
Hogberg v. State Dep’t of Soc. Servs., 2009 Conn. Super. LEXIS 50 (2009). Lynda Hogberg was admitted to a nursing home in September, 2004. Two years later, in September 2006, her husband, a community spouse, filed a Medicaid application. The application was denied in March, 2007. In April, 2007, he filed an appeal. On May […]
James v. Richman, 465 F. Supp. 2d 395 (M.D. Pa. 2006). Robert and Josephine James were married when Robert went to the nursing home. A resource assessment was done and Medicaid determined they had $278,343 in available resources. To reduce their resources, Josephine purchased a $250,000 single premium immediate irrevocable annuity from General Electric Assurance […]
The Deficit Reduction Act of 2005, Pub. L. No. 109-171 (Effective date February 8, 2006). The Deficit Reduction Act of 2005 (DRA) changed the Medicaid eligibility rules significantly. Most of the changes are (or will be) codified at 42 U.S.C. § 1396p. DRA lengthened the look-back from 36 to 60 months; changed the start date […]
Harris v. McRae, 448 U.S. 297 (1980). The Medicaid program created by Title XIX is a cooperative endeavor in which the Federal Government provides financial assistance to participating States to aid them in furnishing health care to needy persons. Under this system of “cooperative federalism,” King v. Smith, 392 U.S. 309, 316, if a State […]
CMS: Centers for Medicare and Medicaid Services. Community Spouse The spouse of an institutionalized spouse. 42 U.S.C. § 1396r-5(h)(2). CSMIA: Community Spouse Monthly Income Allowance. This is the amount of the institutionalized spouse’s income that is diverted, if necessary, to bring the community spouse’s income up to the MMMNA. CSRA: Community Spouse Resource Allowance. DRA: […]
Administration for Community Living releases 2020 Profile of Older Americans. The Profile of Older Americans is an annual summary of critical statistics related to the older population in the United States. Relying primarily on data offered by the U.S. Census Bureau, the Profile illustrates the shifting demographics of Americans age 65 and older. It includes […]
David McGuffey did this interview with Elva Combs and Dan Combs several years ago, but it’s still worth a look. It’s a little over 13 minutes long.
On July 29, 2016, the Elder Law Practice of David L. McGuffey hosted a Special Needs Roundtable in Dalton, Georgia. Our Key Note speaker was Hal Wright, author of the Complete Guide to Creating a Special Needs Life Plan: A Comprehensive Approach Integrating Life, Resource, Financial, and Legal Planning to Ensure a Brighter Future. The […]
In Isaiah 38:1-3, the prophet said “In those days Hezekiah became ill and was at the point of death. The prophet Isaiah son of Amoz went to him and said, “This is what the Lord says: Put your house in order, because you are going to die; you will not recover.” Faith is an important […]
Elder abuse is one of the most vicious acts anyone can commit. Although I am NOT a doctor and do not claim to have specialized knowledge regarding medical or psychological facts, experience as an attorney has shown me that psychopaths and sociopaths, who lack empathy, may be more prone to commit these acts. With that […]
From UCTV: Dr. Geroges Naasan explores the principal clinical syndromes of Alzheimer’s Disease: memory, visual, language and frontal/executive. He also discusses neuropathology, genetic factors and modern biomarkers with colleagues from the UCSF Memory and Aging Center. Recorded on 04/30/2019.
Resources from Justice in Aging: Language Access Rights: Tips for Advocates of Limited English Proficient Older Adults Ten Things You Should Know About Language Access Advocacy for Older Adults Toolkit for Outreach and Education (National Asian Pacific Center on Aging) Eligibility and Access to Aid (Southeast Asia Resource Action Center)
Cornell Law School’s Legal Information Institute (LII) includes a page with a wealth of information, including definitions and summaries of legal concepts and subjects such as contract law and tort law. It clarifies the meaning of nuanced terms like “Malpractice ,” which is a species of tort, saying “The tort committed when a professional fails […]
This video, produced by the National Adult Protective Services Association, identifies signs of elder abuse. Also see University of California’s video, Elder Abuse: The Crime of the Twenty-First Century? – Research on Aging. Attorney Paul Greenwood has prosecuted more than four hundred felony cases of elder and dependent abuse, both physical and financial. He examines […]
Medicare Drug Coverage (Part D). Provides basic information about Medicare prescription drug coverage, benefits and costs, eligibility and enrollment, extra help, comparing and choosing plans, and coverage determinations and appeals Medicare and Medicaid Fraud and Abuse Prevention. Explains Medicare and Medicaid fraud, waste, and abuse prevention, detection, reporting, and recovery Medicare Rights and Protections. Explains […]
2021 Training Powerpoint. Explains the rules that govern the payers‘ responsibility when people have Medicare and certain other types of health and/or prescription drug coverage
In Booth v. State, the Georgia Supreme Court considered the appeal of a daughter convicted of killing her mother. Booth took custody of her elderly mother, Cowart, after she was discharged from the hospital in October 2016. Booth cared for Cowart in Booth’s home with the assistance of a registered nurse until early December. Cowart […]
O.C.G.A. § 31-8-80. Short title This article shall be known as the “Long-term Care Facility Resident Abuse Reporting Act.” O.C.G.A. § 31-8-81. Definitions As used in this article, the term: (1) “Abuse” means any intentional or grossly negligent act or series of acts or intentional or grossly negligent omission to act which causes injury to […]
TITLE 30 Chapter 5 O.C.G.A. § § 30-5-1. Short title This chapter shall be known and may be cited as the “Disabled Adults and Elder Persons Protection Act.” O.C.G.A. § 30-5-2. Legislative purpose The purpose of this chapter is to provide protective services for abused, neglected, or exploited disabled adults and elder persons. It is […]
TITLE 16 Chapter 5 Article 8 O.C.G.A. § 16-5-100 – Definitions As used in this article, the term: (1) “Alzheimer’s disease” means a progressive, degenerative disease or condition that attacks the brain and results in impaired memory, thinking, and behavior. (2) “Dementia” means: (A) An irreversible global loss of cognitive function causing evident intellectual impairment […]
After a loved one dies, there are certain things that need to be done. The following is a short checklist. 1. Burial/Funeral Arrangements Obtain the decedent’s burial and/or funeral instructions, if any. It may be most appropriate to contact the family members or have a family meeting to determine the decedent’s burial wishes. Also, a […]
In Georgia, O.C.G.A. § 29-5-60(a) requires that Conservators, “[e]ach year, within 60 days of the anniversary date of qualification, … file with the court a verified return consisting of a statement of the receipts and expenditures of the conservatorship during the year preceding the anniversary date of qualification, an updated inventory consisting of a statement […]
On April 23, 2021, the Tennessee Court of Appeals decided Estate of Shelton D. Ramey, Case No. E2020-00270-COA-R3-CV. The Court’s syllabus is as follows: This appeal concerns a residual beneficiary’s objection to an estate administrator receiving any fees based upon the latter’s alleged breach of fiduciary duty. David Ramey (“Ramey”) is a beneficiary under his […]
On April 26, 2021, in a letter to Senators Brown, Casey, Hassan, and Representative Dingell, the National Academy of Elder Law Attorneys (NAELA) commented on the Home and Community-Based Services (HCBS) Access Act. Among other comments, NAELA supported the proposal’s expansion of the criteria for being medically eligible for Medicaid HCBS. One suggestion was including […]
In Giller v. Slosberg, an elderly father revoked an existing power of attorney, executed a new power of attorney, and made changes to certain financial accounts relating to his estate-planning strategy. Giller and Seidner (sisters) appealed a judment following a jury verdict in favor of their brother, Slosberg. Slosberg believed his sisters exerted undue influence […]
Video from Pixorize describing Medicare and Medicaid as two different healthcare programs with different functions and beneficiaries.
This CMS webinar explains Medicare administration, eligibility, covered services, and reimbursement.
Being sick or impaired is not enough to qualify for Social Security Disability. Under the Social Security Act, whether you are seeking disability or Supplemental Security Income, “disability” means you are not able to engage in any substantial gainful activity (SGA) because of a medically determinable physical or mental impairment(s) that is either: Expected to […]
Many people believe Medicare will pay for their long-term care costs. That’s not true. Medicare will pay for UP TO 100 days if you had a qualifying hospital stay, if you are discharged to a nursing home for skilled therapy, and then only while you’re receiving skilled therapy. See Center for Medicare Advocacy, Medicare Skilled […]
The Centers for Medicare and Medicaid Services (CMS) discusses different parts of Medicare.
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