Berger Estate & Elder Law, P. A. - Berger Estate & Elder Law P.A.

Client Success Spotlight: Navigating Medicaid Approval with Strategic Planning and Heart!

5/27/2024

At Berger Estate & Elder Law P.A., we don't just manage legal documents; we craft pathways to peace of mind. Six years ago, we had the pleasure of assisting a lovely couple, let's call them Jack and Diane, to prepare for a future that ensured both security and companionship.

The Challenge
Jack and Diane were happily settled in independent living, enjoying their golden years side-by-side. However, as life often does, it threw them a curveball. Diane's health began to require more intensive care, the kind that only a nursing home could provide. The thought of escalating medical costs was daunting, and the couple was anxious about their financial future.

Our Strategy
With foresight and planning, we set up a protection trust for Jack and Diane. They transferred their assets into this trust, a savvy move that would later prove crucial. This wasn't just about securing assets; it was about securing a future where they could still be just a short stroll away from each other.

The Process
Fast forward to today, and life's changes nudged them to make new adjustments. With Diane needing to transition to a nursing home, we revisited their plan. We executed a division of assets and applied for Medicaid on Diane's behalf. This wasn't just paperwork; it was a lifeline.

The Victory
Approval day came, and it was a triumph not just for Diane, but for Jack as well. With Medicaid's nod, all of Diane's income was redirected to support Jack, who remains in assisted living. This strategic income division means Diane receives the care she needs without the burden of out-of-pocket costs, and Jack can maintain his lifestyle nearby. Yes, they're living apart, but they're closer than ever, with Diane just a heartbeat away in the adjacent facility.

The Takeaway
At Berger Estate & Elder Law P.A., we believe in more than just navigating the legal labyrinth. We're here to build bridges - between you and a secure future, between complex laws and personal peace. Jack and Diane's journey from independent living through to Medicaid approval was a path paved with trust and strategic foresight.

Navigating elder law and estate planning can feel overwhelming, but remember, it's not just about the destination; it's about ensuring the journey is handled with care, precision, and a bit of fun. Jack and Diane's story is a testament to what can be achieved with the right guidance and a proactive approach. Here's to many more years of them being just a short walk away from each other, no matter where life takes them.

Elder Financial Abuse by Family Caregivers

5/27/2024

As life expectancy increases and the number of seniors worldwide is set to grow to more than 1.5 billion by the year 2050, watching out for older adults will be more important than ever.

June is World Elder Abuse Awareness Month. Older adults lose an estimated $20 billion each year from financial abuse by family, friends, and caregivers. In many cases, the perpetrators of elder financial abuse are not strangers but trusted individuals, often family members. When victims discover exploitation, they can face challenges navigating complex interpersonal relationships.

A recent webinar hosted by the National Center on Law and Elder Rights (NCLER) shed light on financial exploitation involving family caregivers, including the drivers of this abuse and the options to address it. NCLER offers legal services and resources to aging and disability communities.

Financial Exploitation of Older Adults
Elder financial abuse occurs when an older adult loses money or property because of improper use by someone else. Exploitation by a loved one can happen in a variety of contexts, such as the following:

A caregiver with account access takes money from ATMs or bank accounts for personal use.
A family member pressures the senior to give a large gift, such as a car.
A trusted person unduly influences an elder to sign over the title to a residence.

How Financial Abuse Starts
Financial exploitation often follows a major event in a senior’s life that threatens their ability to continue living on their own. These types of life events include the loss of a spouse, a fall, or a new diagnosis of an illness like cancer or dementia.

If a family member is the abuser, the financial abuse does not always begin with the intention to exploit. When an older adult living on their own needs assistance, it can be mutually beneficial for a family member to move in and help. The family caregiver may assist with household tasks, transportation to medical appointments, and bill payments. The senior may benefit from the companionship and support of someone they know well.

In some cases, a single overstep leads to more significant misuses. If no one notices a bit of missing money, an individual may feel emboldened to take more.

Family caregivers are more likely to commit financial abuse after experiencing hardships like breakups, financial problems, addiction, and mental health issues. These adverse life events can lead to a sense of desperation. Abuse is more likely to occur after an older adult and a young caregiver both experience stressful life events.

Challenges With Family Financial Abuse
Seniors who experience financial exploitation within their families can encounter several challenges, which make it harder to seek help.

Family members’ involvement in caregiving can make older adults reluctant to use safeguards like contracts or rental agreements to define the relationship formally. However, putting the arrangement in writing protects all parties.

Older adults with cognitive decline may not know their financial situation. Mental decline is common. According to research published by the National Library of Medicine, two out of three older adults experience some cognitive decline at age 70.

Those pressured to make large financial gifts may not understand how these gifts could affect their long-term care costs. For instance, giving significant gifts could compromise a senior’s ability to qualify for Medicaid. The Medicaid program has a five-year “lookback” period. So, making a gift to a family member could disqualify a senior from benefits for up to five years.

Feelings of dependence and fear of losing contact can prevent an older adult from speaking up when abuse occurs. Those who feel dependent may think they cannot say no when a family caregiver pressures them for large gifts like a vehicle or home or steers them toward certain financial decisions.

In some cases, victims may be reluctant to act for fear of moving to a nursing home. For these individuals, losing control of their money is preferable to having their caregivers place them in an institution. Older adults often also fear hurting their relationship with the caregiver, especially when the caregiver is a close loved one such as a child.

Options to Address Family Financial Exploitation
Many older adults who experience family financial exploitation are reluctant to seek remedies. However, several options can address the problem while preserving family relationships to different degrees.

With restorative justice, the focus is on fixing the harm. All parties’ involvement is voluntary, allowing the exploiter to take an active role in making amends.
Mediation is an alternative to litigation. A neutral third party, known as a mediator, helps the parties reach a resolution. For financial abuse, mediation should have the same safeguards as a domestic violence situation. The mediator should be familiar with elder financial abuse.
Criminal remedies may be available. In certain cases, it may be necessary to seek a temporary restraining order (TRO) to separate the elder from the abuser. When financial abuse jeopardizes a senior’s Medicaid access, it may also be necessary to file a police report to document the abuse.
While older adults rarely pursue civil remedies, litigation can help restore rights to real property. An attorney can help pursue a lawsuit for undue influence. If a private attorney is too expensive, some legal service programs for elder abuse, neglect, and exploitation offer free or low-cost legal support to older adults facing financial exploitation.

Remedies should support the older adult’s autonomy, and the older adult should decide what solution to pursue. Advocates look to the minimum amount of intervention that causes the least upset in the person’s life.
Preventing Exploitation Older adults and their loved ones can take steps to prevent financial exploitation.

Education can preclude oversteps. For instance, the Consumer Financial Protection Bureau (CFPB) offers brochures about money management.
A neutral, trusted advocate can stay involved when a family member takes on a caregiving role. This second person can look out for the older adult and flag abuse.
Account monitoring can also identify abuse. Financial institutions, loved ones, or older adults can monitor access to bank accounts, credit cards, and other financial resources.
Seniors can create an estate plan that safeguards against abuse.

Working with an Elder Law Attorney
Elder law attorneys can help protect an older adult from financial abuse and, potentially, other forms of abuse. In addition to pursuing legal remedies after exploitation is discovered, they can help an older person create an estate plan that defends them from financial abuse.

For example, a skilled attorney may structure a power of attorney to prevent exploitation, limiting the caregiver’s powers. The attorney should also explain how a loved one might misuse a power of attorney and counsel you on selecting responsible and ethical agents.

What You Should Know About Long-Term Care

5/27/2024

Research shows that roughly one in seven adults aged 65 or older will need long-term care at some point in their later years. Meanwhile, tens of millions of Baby Boomers in the United States are growing older and living longer. It seems inevitable, then, that the future of long-term care will be undergoing significant changes.

The challenges of providing quality care to an ever-larger senior population are numerous. Policy changes, investments in the health care workforce, technological advancements, and more may all be necessary. To ensure you have a plan in place for your care, connect with an experienced elder law attorney sooner rather than later. Continue reading to understand why attorneys in this legal area are especially suited to assist you.

Challenges Facing Long-Term Care

Aging Population – The U.S. is experiencing a rapidly aging population, largely driven by the Baby Boomer generation reaching retirement age. Projections show that, by 2050, the number of Americans aged 65 or older will reach 82 million. This demographic shift is stepping up demand for long-term care services on an enormous scale.
Increasing Demand – With a growing number of older adults, the need for more long-term care options is greater than ever. These options include nursing homes, assisted living facilities, and home health care services. The demand for quality care in these kinds of settings is putting pressure on an already stressed health care system.
Strained Workforce – The existing shortage of health care workers, from caregivers to nurses and physicians, may get worse still. The increase in demand is already straining the existing workforce, potentially affecting the availability and quality of care.
Cost – Most long-term care options are expensive, and most individuals struggle to afford the services they need. For many seniors, Medicaid serves as the primary payer for long-term care. However, Medicaid costs also place a significant financial burden on state budgets. Federal and state governments must explore alternate funding models to make program expenses more affordable.
Shift to Home-Based Care – More and more older adults prefer to receive care in their homes rather than in an institutional setting. Home-based services require greater advancements in technology and telehealth to facilitate these kinds of care options.
Community-Based Services – Beyond home-based care, other types of services for older adults are ripe for expansion. For example, transportation assistance, meal delivery, and social engagement programs remain key to aging in place safely.
Integration of Technology – Technology continues to play a significant role in the future of long-term care. Innovations like remote monitoring devices, robotics, electronic health records, and artificial intelligence can potentially enhance the efficiency and quality of care delivery.
Policy and Regulatory Changes – Lawmakers recognize the need for long-term care reform. Initiatives have been focusing on expanding insurance coverage options, increasing workforce training and support, and implementing quality standards.
Caregiver Support – Family caregivers provide most long-term care in the U.S. today. Recognizing and supporting the needs of these caregivers is essential, including providing resources, respite care, and financial assistance.
Declining Birth Rate – Fewer younger people are entering the U.S. workforce and paying into the tax system. As a result, state and federal governments are finding it difficult to keep pace with the funding they need to meet the growing challenges of long-term care.

5 Ways an Elder Law Attorney Can Help You Plan for Long-Term Care
Elder law attorneys understand the challenges of planning long-term care amidst the shifting care environment. Evaluating costs and developing strategies to pay for long-term care before you actually need it is crucial. The earlier you develop a comprehensive long-term care plan, the better. Strategies an attorney may identify include:

Private insurance coverage
Government programs
Personal savings
Reverse mortgages

1. Protecting Assets
The costs of long-term care today are excessive for most families. For instance, as of late 2023, the average cost of a semi-private room in a nursing home totaled nearly $9,000 a month.

To protect against long-term care costs depleting your assets, an elder law attorney can use various legal tools to help preserve your wealth. This may include creating trusts or transferring assets so that you can qualify for government assistance programs like Medicaid.

Medicaid is a federal and state program that covers long-term care for eligible individuals with limited financial resources. Elder law attorneys are familiar with the complexities of the Medicaid program application process. They also can also help you meet the criteria you need to meet to qualify, which often vary depending on your state. Their work includes navigating which steps you should take to structure your finances to meet Medicaid guidelines.

2. Executing Advance Health Care Directives
Long-term care often involves planning ahead for important health care decisions, too. Creating an advance health care directive with an elder law attorney is part of this. Your directive includes essential documents such as a durable power of attorney for health care, or living will.

With it, you can outline your specific health care preferences and empower someone you trust to make medical decisions on your behalf if you become unable to communicate your wishes.

3. Securing Guardianship
When an individual can no longer make decisions for themselves, an elder law attorney can help initiate guardianship proceedings. (In some states, attorneys may use the term conservator instead of guardian.) This legal process appoints someone to make financial, medical, and personal decisions for the individual who has lost capacity. (Learn more about claiming guardianship of an aging parent.)

4. Finding Veterans Benefits
If you or your loved one is a military veteran, an experienced elder law attorney can prove vital. They can help you explore and access available programs designed to assist with long-term care needs. Potential options might include Aid and Attendance and other benefits.

5. Navigating Nursing Home Contracts and Disputes
Suppose you are considering entering a nursing home or assisted living facility. In that case, an elder law attorney can review your contracts, advise you on your rights and obligations, and explain potential concerns. Your lawyer can also assist in resolving disputes with care providers. If someone you love has endured elder abuse, they can advocate for their interests in cases of neglect.

Additional Information
An experienced elder law attorney specializing in long-term care planning will understand your state’s specific laws and regulations. They have the knowledge to provide you with personalized advice based on your unique circumstances and help you make more informed decisions.

Proper planning will protect your interests and ensure appropriate arrangements. The sooner you develop a comprehensive long-term care strategy, the better your chance of receiving quality care while protecting your assets.

Understanding Medicaid: What Does Medicaid Cover?

5/27/2024

In the complex and frequently changing landscape of health care in the United States, Medicaid stands out as a vital program. Since 1965, it has provided essential coverage to millions of low-income individuals and families. Alongside Medicare, Medicaid serves as a lifeline for those who may otherwise struggle to afford health care services.

Though Medicaid exists to help those who need it, navigating the specifics of what it covers and does not cover can be daunting. This article highlights the basics of Medicaid coverage, shedding light on its benefits and limitations.

The Basics of Medicaid
Medicaid offers health care coverage to individuals and families with limited income and relatively few assets. The program provides a wide range of medical services, including doctor visits, hospital stays, prescription drugs, and preventive care. Medicaid is a joint federal and state program, so each state has the flexibility to administer the program differently within broad federal guidelines.

The eligibility criteria for Medicaid benefits can therefore vary from state to state. Generally, they relate to factors such as income, household size, disability status, and age. Some groups, such as children and pregnant women, may qualify based solely on income. Others, such as seniors and people with disabilities, may need to meet additional criteria.

Services covered by Medicaid also vary from state to state. Each state is required by federal law to provide Medicaid’s mandatory benefits. However, you cannot necessarily assume your state will cover the specific medical care you need.

The following benefits are provided as a guideline. Partner with a professional with expertise in your state’s Medicaid rules to ensure you get the most suitable coverage.

What Medicaid May Cover in Your State

Doctor Visits and Preventive Care
Medicaid should cover visits to primary care physicians, specialists, and other health care providers for preventive services. This may include vaccinations, screenings, and wellness exams.

Hospital Services
Medicaid coverage for inpatient and outpatient hospital care may include emergency room visits, surgeries, and medically necessary treatments.

Transportation to Medical Care
Medicaid generally covers the costs of emergency and non-emergency transportation to and from medical appointments and services that are covered by Medicaid.

Prescription Drugs
Medicaid provides coverage for a wide range of prescription medications deemed medically necessary by health care providers. However, coverage may vary depending on your state's specific guidelines.

Laboratory and Diagnostic Services
Medicaid may cover laboratory tests, diagnostic imaging, and other medical tests necessary for diagnosis and treatment.

Maternity and Newborn Care
Pregnant women enrolled in Medicaid receive comprehensive prenatal, delivery, and postpartum care, as well as coverage for newborn care.

Mental Health and Substance Abuse Services
Mental health services may be eligible for Medicaid coverage. These may include counseling, therapy, and psychiatric care, as well as treatment for substance abuse disorders.

Long-Term Care
Medicaid provides coverage for long-term care services. This includes care in nursing facilities and home health services for eligible individuals who require assistance with daily activities. Individuals may qualify for these services because of age, disability, or chronic illness.

Dental and Vision Care
Coverage for dental and vision services varies by state. Medicaid often includes preventive and basic dental care for children and limited coverage for adults. Vision care may include exams and eyeglasses for children.

What Does Medicaid Not Cover?

Cosmetic Procedures
Medicaid typically does not cover elective cosmetic procedures or treatments that are considered purely cosmetic in nature and not medically necessary.

Experimental or Investigational Treatments
Medicaid does not cover experimental or investigational treatments that have not been proven effective or approved by regulatory agencies.

Certain Types of Care
Though Medicaid covers a wide range of services, there are limitations on certain types of care, such as infertility treatments, elective abortions, and some types of alternative medicine. For example, the federal government lists family planning as a mandatory service benefit, but states interpret this differently.

Non-Emergency Medical Transportation
Though some states offer limited transportation assistance for medical appointments, Medicaid may not cover non-emergency transportation to health care facilities.

Out-of-Network Providers
Medicaid typically requires beneficiaries to receive care from providers within the program's network. Out-of-network care may not be covered except in emergency situations or with prior authorization.

Certain Prescription Drugs
Though Medicaid covers a broad range of prescription medications, coverage may be limited for certain drugs, particularly brand-name medications.

Routine Foot Care
Medicaid often does not cover routine foot care unless it is medically necessary. For example, treatments such as nail trimming, callus removal, or orthopedic shoes may be covered only for Medicaid beneficiaries with a specific condition, such as diabetes.

Seek Expert Advice on Medicaid
Medicaid plays a crucial role in ensuring access to health care for millions of vulnerable individuals and families nationwide. By covering a wide range of essential medical services, Medicaid helps improve the health of eligible beneficiaries. It also alleviates financial burdens for people with low income who may otherwise struggle to afford care.

Though Medicaid covers many services, exclusions and limitations could result in unexpected costs or denials of coverage. Be sure you understand the scope and limitations of Medicaid coverage in your state so you can make informed decisions about your health care needs and costs.

Contact an experienced elder law attorney near you today to talk further about Medicaid. They can walk you through the benefits that may be available to you and help you understand how you can qualify for coverage.

Elder Financial Abuse: How an Elder Law Attorney Can Help

5/2/2024

Elder financial abuse is a significant issue affecting many older adults nationwide. It involves someone exploiting or misusing an older person’s finances or assets for personal gain. Often, the perpetrator is in a position of trust, be it a family member, abusive partner, or paid caregiver.

Recovering from elder financial abuse, both financially and emotionally, can be challenging. However, there are several strategies and resources available to help these victims.

Types of Elder Financial Fraud
Sadly, there are seemingly limitless financial fraud schemes that affect older Americans. The impact of financial abuse is enormous. One 2023 AARP report found that adults over age 60 lose more than $28 billion a year through all types of abusive financial acts.
Tech support scams are one of the most often reported. However, confidence fraud and romance scams cost elderly victims the most money. (In confidence fraud, someone befriends a senior and gains their confidence. They then abuse their relationship by getting access to their money and assets.)
Other forms of financial abuse of seniors include the following:

Business email and email account compromise
Investment
Personal data breach
Real estate or rental
Government impersonation
Identity theft
Sweepstakes, lottery, and inheritance scams
Non-payment or non-delivery
Credit card fraud and advanced fee

First Steps Against Elder Financial Abuse
If you suspect an older person is the victim of financial abuse, report it immediately to the appropriate authorities.

You can begin by contacting your local Adult Protective Services agency (APS) or law enforcement to file a report. The sooner you make a report, the sooner an investigation into the situation can occur. Of utmost importance is taking actions to protect the victim and prevent further abuse. With these services, you can assess the scope of the financial abuse and identify the extent of financial losses.

Secondly, establish a support network for the victim. Surround the older individual with supportive family members, friends, and professionals who can provide emotional support. The victim will need other types of guidance throughout recovery. This network of professionals may include attorneys, financial advisors, therapists, and social workers.

In many cases, the perpetrator of the abuse is a trusted family member or professional caretaker. Remove them immediately from contact with the victim. They also should no longer have access to any accounts that would allow them to further the financial abuse. Where possible, appoint an interim individual to provide financial oversight and protection.

How an Elder Law Attorney Can Aid in the Recovery Process
An elder law attorney can be crucial in helping with elder financial abuse and recovery. Professionals in this field understand the laws and regulations surrounding elder abuse and financial exploitation. They can provide personalized advice related to your specific circumstances. In addition, they can explain your legal rights and options available to rectify the situation.

Documentation, Evidence, and Complaint Filing
Gathering and organizing the necessary documentation and evidence to support a case of financial abuse can be complex. Collecting bank statements, financial records, contracts, and other relevant documents will be necessary to build a compelling case. A formal complaint is more in-depth than the initial reporting of elder financial abuse.

Working with APS and law enforcement, an elder law attorney can provide the necessary documents for an investigation. They will be able to file your formal complaint correctly and promptly as well.

Continuing Contact and Asset Recovery
As a go-between, an attorney can maintain contact with you, the victim, law enforcement, or adult protective services. Ensuring the investigation moves forward and protecting the rights and interests of the older person are paramount. An attorney can communicate on the victim’s behalf with the appropriate agencies to do this.

An elder law attorney can work with financial institutions and other authorities to recover any misused or stolen assets. They may also file lawsuits against the abuser or explore other legal remedies to recover the stolen funds.

Financial Recovery Plan and Credit Reporting Agencies
Notifying major credit reporting agencies like Equifax, Experian, and TransUnion about a case of elder financial abuse is crucial. It can help protect the victim’s credit and prevent further financial abuse via fraud alerts. These agencies also can institute a credit freeze. This blocks abusers from opening new accounts or accessing credit in the victim’s name.

Work with an elder law attorney to develop a plan for rebuilding the victim’s finances. A recovery plan may involve changing an existing budget or managing debt. It also may involve exploring new investment strategies to recover lost assets over time. An attorney can also help identify new financial persons to replace previously abusive financial advisors and create legal documents to appoint these individuals.

Protection Orders and Injunctions
In some cases, the abuser continues to have access to the older individual or their assets. An elder law attorney can help obtain protection orders or injunctions to prevent further harm. These legal measures can prohibit the abuser from contacting or approaching the older person and safeguard their financial resources.

Mediation and Settlement Negotiations
In some cases, resolving financial abuse disputes through mediation or settlement negotiations may be possible. Some perpetrators of financial abuse will remain unreachable for restitution. But in most cases, a person well known to the victim commits the elder financial crime. Mediation, settlements, and even civil or criminal litigation may be appropriate avenues to pursue.

Estate Planning and Asset Protection
An elder law attorney can develop comprehensive estate plans that protect the older person’s assets during their lifetime. They also can provide for their future needs through various legal tools, such as trusts and powers of attorney. This way, the older individual can safeguard their finances and ensure their loved ones honor their wishes.

A financial guardian or conservator may be appropriate when older adults can’t manage their financial affairs on their own. An elder law attorney can help establish legal guardianship. In a guardianship, a trusted individual or institution manages the senior’s finances and makes decisions on their behalf.

Education and Prevention
Restitution after a financial abuse scheme is, of course, desirable. But just as important is preventing elder financial abuse from ever happening again through education and preventative measures. An elder law attorney can explain legal rights, common scams, and warning signs of financial exploitation. They can help older adults make informed financial decisions and provide the legal framework to achieve their goals.

Elder Law Attorneys
Elder law attorneys provide legal expertise and support in addressing elder financial abuse. Involving these experts in the recovery process increases the chances of a successful outcome.

If you suspect someone you love is experiencing elder financial abuse, contact an elder law attorney. They can serve as part of a team that will help them recover emotionally and financially. Abusive situations involving seniors extend beyond economic abuse and can include physical abuse, emotional abuse, and sexual abuse. Consult the appropriate authorities as soon as possible if you believe someone is being victimized.

Could Medicaid Payback Rules Come to an End?

5/2/2024

Amid recent reports from such prominent news outlets about the negative impact of Medicaid estate recovery on families, the idea of ending this practice altogether has resurfaced.

What Is Medicaid?
Medicaid is a public assistance program that seeks to provide health insurance coverage for Americans with limited means. To be eligible for Medicaid in most states, you must meet strict income and asset guidelines. Generally, Medicaid rules will require that you have no more than $2,000 to your name.

Many older Americans who eventually need long-term care services come to rely on Medicaid to cover these costs. (Note that Medicare, a different government program, does not pay for long-term care.)

As of late 2023, the median monthly cost of a semi-private room in a nursing home in the U.S. was close to $9,000. The vast majority of people cannot afford to pay these prices out of pocket over the long term. So, they often opt to spend down what assets they do have until they can qualify for the Medicaid program.

What Is Medicaid Estate Recovery?
Federal law requires that states attempt to recover the funds they had paid out for a Medicaid recipient’s medical care during their lifetime. This might include any costs that have accrued for nursing facility services, prescription drugs, or other medical or long-term care. The Medicaid Estate Recovery Program specifically affects Medicaid long-term care recipients who had reached age 55 or older.

With certain exceptions, it’s mandatory for a state to seek these repayments from the person’s estate after they have passed away. States that fail to pursue this course of action may be at risk of losing the Medicaid funding they receive from the federal government.

Can Medicaid Take Your Home?
In most states, only property that is part of your probate estate is subject to Medicaid estate recovery. So, for instance, if you have named someone to benefit from your life insurance policy, those funds will pass outside probate in most places. However, your house may be your sole asset, and you may not have taken precautions to protect it from estate recovery. In this case, the state Medicaid agency could place a lien on it to recover its costs.

The financial consequences of the Medicaid Estate Recovery Program can be devastating for grieving families. As states seek to recover money they have spent on Medicaid beneficiaries who received long-term care benefits, families with lower incomes tend to be the ones in the crosshairs. In some cases, the survivors of the deceased may lose their family home or face bankruptcy.

The Stop Unfair Medicaid Recoveries Act
In March 2024, U.S. Rep. Jan Schakowsky (D-IL) reintroduced legislation, the Stop Unfair Medicaid Recoveries Act, proposing to end Medicaid estate recovery altogether. The bill would prevent states from placing liens on the homes of Medicaid recipients while helping to improve access to long-term care services.

According to the recent story in the Times, one nonpartisan agency cited that, for fiscal year 2019, most states recouped less than 1 percent of what they had spent on Medicaid long-term care benefits.

“This current system ... is ineffective and unjust, and it must end,” Schakowsky said in a news release about the Act. “Let’s give our seniors and their families dignity and peace of mind.”

Numerous advocacy groups had previously expressed their support for ending Medicaid estate recovery. However, the bill may not be particularly likely to move forward immediately.

Plan for the Unforeseen With Your Elder Law Attorney
Avoiding Medicaid estate recovery is possible, but it does take careful and deliberate planning.

Facing the possibility that you could one day need Medicaid long-term care coverage is important. After all, statistics show that seven in 10 older Americans are likely to require some form of long-term care in their later years.

Keep in mind that the rules regarding Medicaid benefits, which are specific to your state, can be complex. Be sure to work with your elder law attorney, who can help you navigate your potential options. They can assist you in planning for your future and guide you in making the best possible decisions. This might include strategizing about when and how to apply for Medicaid or looking for ways to protect your assets.

States With the Highest and Lowest Assisted Living Costs

5/2/2024

Today, 58 million adults in the United States are 65 and older. Seniors make up more than 17 percent of the American population. The U.S. Census Bureau expects this number to reach 83.7 million by 2050.

Meanwhile, one in every seven older adults will at some point need to rely on long-term care services in their later years. As a result, the growing number of aging Americans is creating an increased need for assisted living options.

What Is Assisted Living?
Assisted living is one type of long-term housing and care option for seniors. These facilities offer residential housing for older adults who need assistance with activities of daily living (ADLs). ADLs include such everyday tasks as bathing, dressing, preparing one’s meals, housekeeping, and managing one’s medication. Unlike nursing homes, assisted living facilities do not provide around-the-clock medical care to their residents.

The National Center for Assisted Living reports that there are currently more than 30,600 assisted living facilities and 1.2 million licensed beds in the U.S. According to the National Investment Center for Seniors Housing and Care, the senior housing occupancy rate rose for the ninth consecutive quarter, just surpassing 84 percent in late 2023. (The pre-pandemic rate, as of the first quarter of 2020, was 87 percent.) With this rising occupancy rate, the demand for assisted living is outpacing the number of beds available.

Seniors seeking information on assisted living options may find recent data from the Seniorly Resource Center particularly useful. The Center’s newly issued 2024 report sheds light on the costs of assisted living – from the most to the least expensive – across the U.S.

The Cost of Assisted Living
Across the country, assisted living costs an average of $4,401 monthly, increasing by 8 percent from 2021 to 2023.

During this timeframe, average assisted living costs grew in 30 states, remained about the same in six states, and fell in 15 states.

Wyoming saw the most considerable increase. There, assisted living costs leapt by 53 percent between 2021 and 2023, from an average of $3,845 per month to $5,894 per month.
In both New Hampshire and West Virginia, average fees rose by 46 percent. With average monthly costs rising from $5,644 to $8,248 in New Hampshire, it stands as the single most expensive state for assisted living. In West Virginia, assisted living prices went from $3,327 to $4,846 per month.
Fees decreased by 15 percent in three states between 2021 and 2023. In Indiana, average monthly costs reduced from $4,328 to $3,695. Iowa fees lowered from $4,013 to $3,420. Washington State’s monthly assisted living fees went from $4,995 to $4,176 on average.

The Most Expensive, and Most Affordable, States for Assisted Living
While the prices of assisted living options can vary even within states, the findings identified the states with the highest and lowest fees on average.

As mentioned above, New Hampshire has the highest average monthly cost of assisted living at $8,248. Meanwhile, Louisiana has the lowest average monthly rate of $2,946.

The 10 most expensive states for assisted living, with monthly costs averaging above $5,000, are mainly located in New England and the Mid-Atlantic, reflecting the number of higher-end options available in these regions.

In-Home Care
Many seniors and their families may weigh assisted living against in-home care. Similar to assisted living, in-home care varies in affordability across states. An in-home aide costs an average of $5,462 per month in the United States.

Minnesota is the most expensive state for home health aides, costing an average of $7,333 per month. Compared with in-home care, assisted living is in fact more affordable there, with an average cost of $3,472 per month.
In West Virginia, home health costs an average of $3,793 per month, while assisted living costs an average of $4,846.

Weighing the pros and cons of assisted living versus in-home care remains essential. One 2022 study suggested that many seniors relying on in-home care were missing out on necessary assistance compared with those living in a residential facility setting.

Paying for Assisted Living
In addition to the rising costs of assisted living in many places, the Seniorly report points out that inflation has exceeded the Federal Reserve’s 2 percent target since March 2021. In addition, The New York Times also reports that senior living costs have risen faster than inflation.

Given the high costs of assisted living and in-home care, paying for care can be challenging for many families. Medicare does not cover assisted living room and board. Medicaid generally does not cover these costs, either; however, numerous states offer Medicaid assisted living waivers that can help. Unfortunately, waiting lists for such waivers may be lengthy.

According to Seniorly’s report, the typical American must save for about 17 years to be able to afford a single year of assisted living costs. To calculate this, it used the Census Bureau’s 2022 median annual household income and assumed 4.1 percent savings. Based on these estimates, it would take nearly 27 years of savings to pay for a year of assisted living in New Hampshire or about 12 years to afford a year of assisted living in Maryland.

Navigating Senior Care: Speak With Your Elder Law Attorney
Your elder law attorney can help you or your loved one organize strategies for affording long-term care. Contact them today to create a long-term care plan that will work for you.

Avoiding Property Tax Foreclosures for Older Adults

5/2/2024

If you are a homeowner who is falling behind on your real estate taxes, you may end up facing foreclosure on your property. Because your property taxes hinge on the value of your property, you may find your taxes rising beyond what you can afford. Before your situation becomes more serious, be sure to educate yourself. Get a better understanding of the laws regarding tax foreclosure – as well as where you can turn to get help.

Tax relief is available in many states, but you have to know how and where to access it. In some cases, you must apply for these tax exemptions, and meeting application deadlines is key. Many older adults remain unaware of such tax break opportunities. In fact, low-income senior homeowners are among those who, historically, have encountered challenges accessing tax relief.

One organization raising awareness regarding property tax relief for seniors is the National Center on Law and Elder Rights. In an FAQ resource and webinar on preventing tax foreclosures, it addresses points essential for advocates of older homeowners. Continue reading for some of the highlights that all senior homeowners should know.

Property Tax Foreclosure Laws
Tax foreclosure laws in each state permit liens against real estate, unpaid taxes, as well as property sales to collect on liens. These laws vary in each state, but there are similarities. In general, states assess taxes based on estimated property value, and tax bills are due annually.

If you fail to pay your property tax bills on time, your property could be subject to a tax lien. By placing a lien on your home, the government is in essence securing your home as collateral. This then allows the tax collector to auction or sell your home, if necessary, to pay off your tax debt.

Homeowners do have options to stop the tax sale process at different stages. Yet the most at-risk homeowners may need the help of an advocate right away. They frequently don’t understand what actions they need to take until it’s too late.

Why Are Older Adults at Risk?
Lenders normally insist that homeowners pay their real estate taxes through an escrow account. This helps the property owner set aside the funds monthly, prior to the annual tax bill due date. In many cases, older homeowners no longer have mortgages on their homes. If they are on a fixed or limited income and don’t budget for the funds, they may have trouble making the payment.

This is why many seniors who own their homes commonly end up in the tax foreclosure process.

Increasing Homeowners’ Ability to Afford Property Taxes
With the help of an advocate, you can potentially steer clear of the risks of tax foreclosure in several ways:

Questioning the property value assessment
Seeking available tax abatements, exemptions, or discounts
Contesting tax lien enforcement or property foreclosure
Attempting to recover a property after a tax sale

Preventing overwhelming debt is the best approach to avoiding a tax sale. If a home valuation is too high, the tax assessment may be inaccurate. As mentioned above, you can in fact appeal the valuation. (Check out this AARP story featuring how one advocate assists homeowners in his community file these kinds of appeals.)

In some states, seniors are eligible for a tax exemption or abatement program that can lower their property taxes. Advocates can help homeowners understand their rights, learn about all available tax relief programs, and apply for relief.

Recent Supreme Court Ruling Regarding Tax Foreclosure Laws
In a case decided by the Supreme Court in 2023, a senior homeowner in Minnesota lost out on funds when her foreclosed home sold. Although the sale of her home paid off her property tax debt, the county did not give her any of the surplus funds from the sale.

The court ruled that the government could not foreclose on the woman's property and keep her home equity after paying off her tax debt. This could, the court stated, also apply in situations where a private purchaser buys a tax lien. As this means that homeowners have a right to receive any surplus equity, many states will need to revise their tax foreclosure laws.

States also must give proper notice to property owners and other parties interested in the property. This way, they have sufficient time to take necessary action, including contesting the foreclosure or fulfilling their tax debt.

Heirs at Risk of Property Tax Foreclosure
Per the National Center on Law and Elder Rights, heirs who inherit their family home may be at high risk for property tax foreclosure. However, they, too, are eligible to apply for available tax relief. Be sure to research programs in your state to understand what discounts and exemptions you may be able to access. Consider seeking out the help of your elder law attorney to assist you.

Tax Relief Resources
For senior homeowners, property tax liens and foreclosures can take away their ability to:

age in place,
benefit from the equity in their home, and
pass wealth on to their loved ones.

Nationwide, community engagement organizations seek to protect older homeowners from losing their homes to property tax foreclosure. Elder abuse scams threatening tax foreclosures also pose a risk to seniors.

A variety of tax relief programs exist to assist homeowners who are having trouble affording their household-related expenses. For example, many cities offer some kind of tax relief program for senior homeowners and other populations. Additional resources, such as the following, may also benefit you:

Homeowner Assistance Fund. This federal program, established in 2021, helps homeowners facing financial strain as a result of the COVID-19 pandemic. Find support through this program in your state.
Foreclosure Prevention Housing Counseling. Through the U.S. Department of Housing and Urban Development (HUD), you can seek the help of certified housing counselors. These individuals can help you understand, prepare for, and potentially avoid the foreclosure process. Search for a HUD housing counselor near you.
Retiree Tax Map. Kiplinger's offers a free nationwide guide outlining what tax credit programs may be available to retirees in each state.

In addition, your elder law attorney can help ensure you are able to hold onto your home. If you or a loved one is facing a property tax lien or foreclosure, contact your attorney. They are familiar with state laws and programs that benefit seniors and can move quickly to help you get tax relief.

Berger Estate & Elder Law, P.A.

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