Which Medicare Option is Right for You?

As a senior, you know that every year you need to spend some time looking at next year’s Medicare D drug plans. Not only do you have the ability to change plans every year, but the companies that offer the plans (there are actually over 20 of them in effect in 2020) can and do change them every year, so the same plan that is priced right and covers all your prescriptions this year may be totally different next year.

This year, though, since you probably have more time on your hands given Covid-19, take the time to look at the options for the rest of your Medicare coverage. The vast majority of seniors in Massachusetts still enroll in what I will call the “traditional” Medicare package. They are on Medicare A (hospital in-patient, short-term rehab in nursing homes, hospice and a few other things) and Medicare B (doctors and pretty much everything else) and then buy a Medicare Supplement policy that covers the various deductibles and co-pays that traditional Medicare does not cover. Many people in Massachusetts never get beyond those options. That Medicare Supplemental policy, plus the Medicare B deductible, can add up to a big monthly insurance bill.

In most other states, seniors have taken advantage of their other option, or options for care: Medicare C, often called Medicare Advantage plans. These plans encourage private insurers to develop insurance packages that improve upon Medicare, as long as the packages provide the same level of care and prices, or better than Medicare A and B. These plans typically start off by matching the cost of your Medicare B deductible and your Medical Supplemental costs, then add additional benefits. Plans may provide for medical or dental benefits, additional checkups, health clubs memberships, and incentives for staying healthy. They also typically will include a Medicare D drug benefit. In other words, these plans offer variety and may save you money.

Over one-third of seniors nationally have opted to replace their traditional Medicare package with a Medicare Advantage plan. Like the Medicare D plans, your Medicare Advantage plan can be changed every year so you can regularly tailor your plan to meet your changing medical needs. You can also switch back to the traditional Medicare package, if you find you are not happy with Medicare Advantage. Remember, you may only be able to switch at certain times of the year.

To learn more about your options, call your senior center and ask to talk to the SHINE counselor. Medicare’s open enrollment period will run from October 15th until December 7th. I am also available should you have any questions or would like more information; please feel free to contact me at (508) 860-1470 or abergeron@mirickoconnell.com. Visit Frank and Mary’s YouTube channel, www.youtube.com/elderlawfrankandmary and your local cable station during COVID-19, for my virtual elder law educational seminars, as well as, Frank and Mary’s weekly local cable TV shows, where my co-hosts and I address many common issues facing seniors and the resources available during the pandemic.

Posted in Uncategorized

How to Minimize Your Taxes

Who likes paying taxes? No one! Below are some ways you may be able to minimize or avoid taxes:

REAL ESTATE TAXES

  • Abatements. You may already be aware of the senior and veterans abatements, but did you know that you could be eligible for other abatements in your community. Contact the Assessor’s Office to inquire.
  • Senior tax work-off. Your community has a tax work-off program that allows you to substantially reduce your tax bill by “working off” or volunteering in designated town departments. Contact your Council on Aging to ask about eligibility and application deadlines.
  • The state “circuit breaker” program. If your taxes (plus 50% of water and sewer bills) exceed 25% of your annual income, Massachusetts will reimburse you for part of the bill up to $1,000, even if you do not pay state income taxes. You can also apply retroactively if you failed to apply for this over the past 2 years.

INCOME TAXES

  • Maximize your medical deductions.   Seniors who get care at home or live in an assisted living community or nursing home typically have many medical expenses. The cost of care and even the “rent” may be a medical deduction that can offset your income and reduce taxes. It may be a great time to pull tax-deferred funds and reduce or eliminate the taxes you would have paid.
  • Offset your gifting. If your kids each received an equal share of your IRA before taxes, they may actually receive an unequal share after taxes if their federal tax brackets are different. To offset this, give your tax-deferred money to the children with less income and balance it off by increasing the shares to the others from other assets. Or, consider giving your IRA to charity; the charity receives it tax free and it may reduce your estate tax.

ESTATE TAXES

  • Don’t worry about it unless your estate will be worth more than $1 Million when you pass away.
  • Give it away before you die. If you (or your Power of Attorney agent) give away all your assets the day before you die, you will have reduced your taxable estate to zero and, therefore, your estate tax to zero. Remember, there is no gift tax unless you give away more than $11,580,000 during your lifetime. If you can’t give it all away, any amount you do give is not taxed in your estate, which will save Mass. estate tax.

For more information, please feel free to contact me at (508) 860-1470 or abergeron@mirickoconnell.com. I will also focus on this issue in my August virtual seminar, which will be aired on local cable stations. You can also find the seminar on Frank and Mary’s YouTube channel, www.youtube.com/elderlawfrankandmary. Frank and Mary’s YouTube channel may be a helpful resource during COVID-19, as my co-hosts and I address many common issues facing seniors and the resources available during the pandemic through weekly virtual local cable TV shows.

Posted in Uncategorized

You’re Single. Does Your Estate Plan (Still) Work?

If you’ve been single all your life, you’ve had a lot of time to worry about protecting yourself and your assets while you are alive and making sure they go to the right people after you die. Occasionally, though, that plan needs updating as your situation changes, or as your worries do. For example:

  • Do you have fewer assets than you once did? If so, your need to structure things to avoid estate taxation later may no longer be relevant.
  • As you get older, are you worried about the impact on your assets if you need nursing home care? If you want to protect those assets from having to be spent down if you need to qualify for MassHealth, you will need to protect them five years ahead of time.
  • Is the person you named to take care of things for you if you got sick (through a health care proxy or durable power of attorney) or died (through a will or trust) now getting old too? It is time to make sure you have named a replacement in case your old friend or relative can’t handle it.
  • Are the people you want to give things to getting old themselves? You may want to specify that what you give them will instead be held in trust for them, so that those assets will not get counted against them and have to be spent down if they need to qualify for MassHealth.

If, on the other hand, you recently became single because you just got divorced or (more likely for my clients) because your spouse died, your estate plan probably needs to change drastically, for a number of reasons:

  • While you were both alive, you probably owned most things jointly, so that if one died, the other became the sole owner, without the necessity for probate or other legal entanglements. Once you are single, you need to rethink all this. If you want assets to pass to people when you die, while avoiding the time and cost of the probate process, you need to either give them the interest in the property now (an outright gift, a joint interest in bank accounts, or a remainder interest in real estate, for example) or create a trust. You can name yourself as trustee while you are alive, but you need to name someone else as successor trustee for after you die or become incompetent and to divide up the assets after you are gone.
  • If your spouse was the only person you named to take care of legal things for you (through your durable power of attorney) or to make medical decisions for you (through your health care proxy), you need to name a replacement.

For more information, please feel free to contact me at (508) 860-1470 or abergeron@mirickoconnell.com. I will also focus on this issue in my July virtual seminar, which will be aired on local cable stations. You can also find the seminar on Frank and Mary’s YouTube channel, www.youtube.com/elderlawfrankandmary. Frank and Mary’s YouTube channel may be a helpful resource during COVID-19, as my co-hosts and I address many common issues facing seniors and the resources available during the pandemic through weekly virtual local cable TV shows.

Posted in Uncategorized

Nursing Home Alternatives During COVID-19

What is the alternative to being in a nursing home? That question is top of mind for many seniors now due to the high risk factors of the coronavirus, and the fact that the disease has become widespread within nursing home facilities.

While some folks simply cannot live at home as a medical matter, many of those in nursing homes, especially those who are there primarily because of their dementia symptoms, may be able to move back home or to a relative’s home. Those who are considering this but wondering how they can pay for the care at home should consider the Frail Elder Waiver (FEW) program (sometimes referred to as the Choices program). As the name implies, the FEW allows people living in the community to “waive” the usual income limits. A senior who would otherwise be medically eligible for a nursing home using the MassHealth criteria can, instead, qualify for MassHealth benefits at home. The asset criteria for qualification are exactly the same:

  • The senior cannot have more than $2,000 in countable assets.
  • The spouse can own the home, can have other assets up to $128,640, and can have unlimited income.

For seniors who have too much in assets, the same strategies (transferring funds to a d4c pooled trust and/or buying an annuity) are available to allow the senior to restructure assets at the last minute, and then qualify.

Once the senior has qualified for the FEW, MassHealth will typically pay for between 40-50 hours of home care services per week to keep the senior at home. MassHealth may also pay a family member (other than the spouse) a stipend to stay home and care for the senior. While there may be a deductible involved depending on the senior’s income, that deductible can come from the senior’s income, which now won’t be paid to the nursing home. It can also come from the spouse’s funds, from the d4c trust, or from a reverse mortgage on the home.

If you are concerned that you or someone you love may need nursing home care in the near future, the Frail Elder Waiver is something you may want to consider as an alternative.

For more information, please feel free to contact me at (508) 860-1470 or abergeron@mirickoconnell.com. I will also focus on this issue in my June virtual seminar, GETTING CARE AT HOME DURING THE PANDEMIC, which will be aired on local cable stations. You can also find the seminar on Frank and Mary’s YouTube channel, www.youtube.com/elderlawfrankandmary. Frank and Mary’s YouTube channel may be a helpful resource during COVID-19, as my co-hosts and I address many common issues facing seniors and the resources available during the pandemic through weekly virtual local cable TV shows.

Posted in Uncategorized

The Impact of COVID-19: We Are in This Together

In these columns, I generally try to provide legal tips and advice regarding how you, as seniors, can plan to make your life easier and to be prepared for life’s inevitable emergencies. Well, here we are. We are all living through an emergency that none of us could have foreseen or planned for. We are all hunkering down, confused about what the next day will bring, concerned about the wellbeing of our families and friends. Jobs are being lost. Lives are in danger. What do you do next?

First, take care of yourself. As seniors (I’m with you; I turned 70 in January), we are especially vulnerable right now. Prepare for the medical emergency that might hit.

  • Make sure your health care proxy (HCP) is accessible if needed. Most seniors have a health care proxy, but many have never given it to the person they named as their agent. Many more don’t know where it is. If you have not given a copy to your doctor, you should. This would also be a great time to talk to the agent you named in your proxy about how you would like to be treated if Covid-19 hits you.
  • Talk to the person you have named in your Power of Attorney. That person may need to be doing things for you if you’re in the hospital or simply because you’re stuck at home. That has become particularly true for folks in assisted living communities that have been essentially locked down.

Second, take care of those around you. This applies to your best friend and also to that woman or man down the street whom you see (or saw) all the time but is now stuck at home. Who knows, that neighbor may have no one to talk to right now, no one with whom to share the incredible anxiety that we are all facing. Email is fine, but there is something comforting about hearing someone’s voice, so while we encourage social distancing, consider reaching out with a phone call.

Third, stay connected with your community. Senior centers and other traditional gathering places for seniors are now closed, but other sources of great information exist to help you navigate what is happening in your community. In particular, check out your community cable station, either by turning to your local cable TV channel or by visiting their website. The folks at your community cable station are dedicated to keeping you informed about the services and programs that will help you cope, and to keeping you in touch with the rest of your community.

Finally, this may be a great time to do the estate plan you were always going to do but put off because you did not have the time or it was really not that important. You have the time. And it could be really important. If you need more information on this, you can contact me at (508) 860-1470 or abergeron@mirickoconnell.com. You may also find Frank and Mary’s YouTube channel to be a helpful resource, as I address many common issues facing seniors and their loved ones. All of my cable TV shows, educational seminars and 10-minute elder law Q&A Fireside Chats are available at www.youtube.com/elderlawfrankandmary.

Posted in Uncategorized

Podcast: Attorney Emily Crim discusses estate planning for same-sex couples

on airClick here to listen to Emily Crim’s recent podcast on estate planning for same-sex couples, as part of Mirick O’Connell’s On Air with Mirick O’Connell podcast series.

Posted in COVID-19, Elder Law, Estate Planning

Massachusetts Legislature passes remote notarization bill

In a highly anticipated move, the Massachusetts Legislature passed a bill allowing for remote notarization of important legal documents. This bill is now on Governor Baker’s desk waiting for his signature. The bill will temporarily allow notaries and document signers to conduct important legal transactions via video conferences.

This is critical for those wishing to execute estate planning documents. Now notaries, document signers, and witnesses can all come together via a video conference to execute documents. To be valid, the notary, the document signer, and any witnesses must all be physically present in Massachusetts at the time of the signing. The notary must observe each person signing the documents. Anyone signing documents must give the notary satisfactory identification, and the notary must keep copies of the identification for 10 years. After the documents have been signed, they must be sent to the notary via delivery service or courier. The notary must also complete a detailed affidavit regarding the execution and requirements, which must be kept for 10 years.

Notably, any transactions involving mortgages or real estate sales require a second videoconference once the notary receives the documents. In the second videoconference, each signer and witness must verify to the notary that the documents before the notary are the same ones executed during the first videoconference.

The bill will be automatically repealed three business days after Governor Baker declares the end of the COVID-19 state of emergency. 

Once Governor Baker signs the bill, video document signings can begin immediately, which will enable us to provide you with a much needed way to execute your estate planning documents without leaving your home.

Posted in COVID-19, Estate Planning

Protecting the Elderly: Coronavirus and Nursing Homes

The daily headlines are filled with horrific stories describing hundreds of coronavirus deaths at nursing homes across the country. The most vulnerable in the country are the elderly and those with underlying health issues. Nursing homes, by their very nature, house those who are in fact the most susceptible to COVID-19.

Despite the fact that nursing homes provide care to the most vulnerable, Federal, State and local authorities are not doing enough to protect their residents.

Nursing home owners and administrators claim that leadership from the Federal government is extremely weak because of a longstanding culture of adversarial relationships. The industry sees the Centers for Medicare and Medicaid Services (CMS) focusing on “inspect, identify weaknesses and punish” rather than providing support and guidance. John R. Grace has operated nursing homes for more than forty years: “We are the stepchildren in the healthcare systems and serve the forgotten generation.”
There has been more public discussion about how to disembark people from cruise ships than how to protect nursing home residents; move residents out of infected nursing homes into field hospitals or back to their homes with necessary attendant care.

Nursing homes desperately need priority access to personal protective equipment (PPE) and COVID-19 testing to provide safe care in the coming months. There is a shortage of face masks, eye protection, gowns and gloves to protect the elderly and those working in nursing homes.

Nursing homes have been unable to get enough protective gear and tests, in part because hospitals are getting the supplies first. Stephen Hanse, the President and CEO of the New York State Health Facilities Association—New York State Center for Assisted Living, has pleaded for additional help. Mr. Hanse asserts that the nursing home industry has been treated as a “second-tier priority.” If the country is to stop the horrific carnage in our nursing homes, more resources need to be directed to this industry.

Although no one is in favor of unnecessary and expensive regulations, it is clear that the nursing home industry requires some regulations to protect the most vulnerable in our country. It is also clear that some regulations need to be eliminated.

In July of this year, prior to the outbreak of the virus, CMS set in motion a plan to weaken the rules regulating the nursing home industry. CMS moved to eliminate the requirement to have even a part-time infection specialist on staff. Attorney Generals in seventeen states criticized the proposal calling it a clear threat to the “mental and physical security of some of the most vulnerable residents of the country.” Even before the arrival of COVID-19, nursing homes averaged about 380,000 resident deaths each year as a result of infections. With the arrival of COVID-19 this is not the time to eliminate regulations requiring infection specialists at nursing homes.

In March of this year New York added a new regulation specifying that a nursing home resident who is discharged from a hospital cannot be denied readmission to his/her nursing home just because the resident tests positive for COVID-19. Common sense dictates that an elderly patient who tests positive for the virus when discharged should not be sent back to his/her nursing home. A discharged patient with COVID-19 should not be allowed to return to the nursing home where it is likely that the other residents will become infected. Dr. Michael Wasserman, president of the California Association of Long Term Care Medicine, recently stated: “We have an obligation to our patients to draw the line.” Increasing the number of COVID-19 positive residents in facilities–whether these facilities have patients with the virus or not—raises the risk of infecting the uninfected and dramatically increasing the number of deaths. Advocates for the elderly have voiced strong opposition to New York’s policy, calling it “over-reaching, not consistent with science, and beyond all, not in the least consistent with patient safety principles.”

David Grabowski, a professor of Health Care Policy at Harvard Medical School, provides further evidence against New York’s policy: “I would be surprised if even 10% to 15% of skilled nursing facilities in the U.S. could take a COVID positive patient and treat that patient safely while ensuring that other residents in the home are safe.”

Dr. Grabowski calls for establishing “centers of excellence” to care for patient recovery from COVID-19 and building temporary facilities in hot spots where the need for post-hospital services are likely to surge.

In New York, a field hospital is being built by the Army Corps of Engineers for recovering patients who don’t need acute care services.

Here in Massachusetts, the DCU Center has been set up to treat COVID-19 patients no longer in need of acute hospital care. Partners Healthcare opened the Fourth Floor of the Spaulding Hospital for non-acute patients and will accept patients from a number of other Boston hospitals. More money is needed to build and staff these facilities.
One of the goals of these field hospitals is to help COVID-19 patients recover so they can return to their nursing homes without bringing the virus with them.

Although most nursing homes are doing everything possible to protect the residents, it is astounding that other nursing homes have not implemented simple policies and procedures requiring workers to wear masks and wash hands.

Beginning in March, CMS postponed routine inspections and has been focusing solely on inspections related to infection control. The CMS reports that one in three nursing homes did not follow simple handwashing guidelines.

In a minority of states, including Massachusetts, legislation has been enacted to protect healthcare workers caring for COVID-19 patients. These laws and executive orders provide immunity to healthcare workers during the pandemic. Although the constitutionality of these laws has not been tested by the Courts, the new laws do have exceptions for gross negligence or reckless conduct. This means that a lawsuit can be brought against a nursing home for acts which are reckless or which amount to gross negligence.

While it is true that ventilator shortages or test kit shortages may be beyond the control of the nursing homes, the exceptions for gross negligence and reckless conduct insure that a nursing home employee who recklessly refused to wear a mask or wash his/her hands as he/she moved from room to room to provide aid to the residents will not be immune from liability.

Adding to the chaos is the fact that families and other professionals who advocate for nursing home residents, such as geriatric care managers and ombudsman, are currently prohibited from visiting with elderly residents. Families are notified via phone that their loved one has died. Families have no opportunity to say goodbye, or to ensure that their loved one has received adequate care at the end of his or her life. Nursing homes have effectively been sealed off from the outside world with little to no oversight.

This lack of oversight can lead to reports, such as those in the news recently, about nursing homes not accurately reporting the numbers of COVID-19 cases and deaths in their facilities or failing to implement proper testing procedures. As a result, CMS issued new guidance on April 19th requiring nursing home administrators to inform residents and their representatives within 12 hours of the occurrence of a single confirmed infection of COVID-19, or three or more residents or staff with new-onset of respiratory symptoms that occur within 72 hours. Nursing homes must thereafter provide weekly updates to residents and their representatives disclosing the number of newly confirmed COVID-19 cases or new-onset respiratory symptoms.

It has been reported that nursing home deaths involving the virus make up one-fifth of our country’s body count. This vulnerable population needs to be protected by regulations, oversight and in the case of gross negligence, reckless conduct or fraud, the protections of the civil justice system.

The new immunity laws also allow for lawsuits in the event of “fraud.” In cases where nursing homes fail to disclose to a patient and his/her family that another patient has the virus, families who would have moved their elderly parent or grandparent out of the nursing home, if they had known that other residents were testing positive, may have claims based on fraud.

None of us should be allowed to conduct our personal or professional lives as if we have no responsibility to those that we live with, work with, care for or provide services to.
Hopefully, federal, state and local authorities will begin to pour more money into our nursing homes to protect those most vulnerable. Nursing homes are land-based cruise ships and as one commentator noted, being in an infected nursing home is like being on the Titanic without a lifeboat.

Every nursing home needs a clear plan of action to avoid systemic failure. Experts claim that when the virus is introduced into a nursing home and the resident is not properly treated and isolated, fatality rates of 30%, 40% and 50% are likely. If basic safety measures are not undertaken, then conditions in nursing homes will continue to decimate the elderly and the sick. The nursing home industry needs more resources and this population should be treated as a priority.

Posted in COVID-19, Elder Law

Proposed Legislation Would Allow Temporary Remote Notarization

notaryIn these complicated times, people still have vital estate planning and other financial needs requiring notarized and witnessed documentation. Indeed, the current circumstances have motivated many to get vital documents executed as soon as possible. To facilitate this, there has been a push for emergency legislation temporarily allowing remote notarization of such documents.

Under current Massachusetts law, notaries and signers of documents such as wills and deeds must meet face-to-face for the notarization and/or witnessing. Such a requirement has become unworkable and unsafe during this coronavirus crisis given that the way to curb the spread of the virus is social distancing.

Recognizing the profound impact that stay-at-home orders, social distancing protocols, and non-essential business closures will have on clients’ and practitioners’ ability to properly execute estate plans and other important legal documents, a motivated group of practitioners began advocating for legislation authorizing remote notarization. While the particulars are still in flux, the legislation would allow for execution and notarization of documents via videoconferencing.

Stay tuned for future updates from us as they come. In the meantime, we encourage practitioners, clients, and all interested persons to contact their state legislators to encourage them to move the bill forward. Click here to find your legislators.

Posted in COVID-19, Estate Planning

Couples: 5 Reasons to Review Your Estate Plan

I see about 500 new individuals or couples every year to talk about their estate plan. Occasionally, I find couples who have done no planning at all. In the vast majority of cases, though, people have a plan. It just may not be the right one, especially if it was done a while ago. Many lawyers (including me) will review your estate plan and make recommendations for changes for free. If you are a couple, here are some reasons you might want to have your estate plan reviewed:

  1. You’re older so therefore your concerns have changed. My new clients are all over 55. Their original estate plans typically were designed for simplicity and probate avoidance. Once they get to a certain age, though, often around 65, they start worrying about possible nursing home costs, especially if one spouse passes away and the other later needs nursing home care. They can protect each other in this situation, but only with wills containing testamentary trusts. Their current plan, while it avoids probate and therefore saves possible probate costs, may expose their surviving spouse to vast nursing home expenses. If that is a concern, it may be time to update your estate plans.
  2. Your assets have increased. Property values have gone up a lot. So have investments. If couples have assets worth more than $1M, their children may be looking at a Massachusetts estate tax bill after the second spouse passes away. The initial marginal estate tax rate on the first dollar over $1M is 40%. By structuring your estate plans correctly, they can typically eliminate the Massachusetts Department of Revenue as a beneficiary of their estate.
  3. Your assets have decreased. Conversely, I often see clients with thick estate planning binders full of documents whose only basic purpose is to avoid estate taxation, even though their estate would no longer be subject to estate tax. Those packages typically do nothing to protect couples from potential nursing home bills. These folks may want to update their estate plans.
  4. You have a useless irrevocable trust. Transferring assets, especially your home, to an irrevocable trust is unnecessary given recent changes in MassHealth rulings; and as such, the trust may no longer even be valid. Contrary to popular myth, these trusts can often be changed or undone if necessary.
  5. Your family needs have changed. Perhaps one of the kids got divorced, or has financial problems, or there is a disabled child, or one of you is sick. Certain changes in the family dynamics may affect the way you have your estate plan designed. Make sure your plan meets your current needs.

Maybe your current plan is fine. Maybe it needs a few minor tweaks. Or, maybe there is something really wrong with your current estate plan, and it would be worth the money to fix it. You owe it to yourself to at least find out. If you need more information on this, you can contact me at (508) 860-1470 or abergeron@mirickoconnell.com. You may also find Frank and Mary’s YouTube channel to be a helpful resource, as I address many common issues facing seniors and their loved ones. All of my cable TV shows, educational seminars and 10-minute elder law Q&A Fireside Chats are available at www.youtube.com/elderlawfrankandmary.

Posted in Elder Law, Estate Planning