Walnut Creek Elder Law Blog

The California Welfare and Institutions Code Section 15610.07 defines elder abuse as follows:

“Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

In addition, the California Penal Code, Section 368 provides for criminal penalties for elder abuse, against someone who willfully causes or permits an elder to suffer, or inflicts unjustifiable physical pain or mental suffering on the older person.

Examples of elder abuse could include physical injury, broken bones, unusual bruises and, bedsores. In addition, social isolation, abandonment and financial abuse can be forms of elder abuse.

Persons who provide care for elders, whether licensed or not, are mandated to report elder abuse.  In addition, any private citizen can report elder abuse.  You can report abuse by calling (APS) Adult Protective Services or by calling 911.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law and asset protection attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. His practice includes Medi-Cal qualification for nursing homes, elder law, asset protection and estate planning for seniors.

VA BENEFITS MAY COVER THE COST OF AN ASSITED LIVING FACILITY OR IN HOME CARE

www.WalnutCreekElderLaw.com. As we discussed in previous Elder Law Today newsletters, the Veteran’s Administration provides a wonderful pension benefit for those individuals who served at least one day during a period of wartime and are now disabled due to non-service connected reasons (aging related issues,  Alzheimer’s, Parkinson’s, multiple sclerosis, and/or other physical disabilities).  This pension, referred to as “Aid and Attendance Allowance”, may pay  the long term care provided in an assisted living facility, or in-home care.  

The “Aid and Attendance” (A and A) benefit is available to a veteran who is disabled and requires the aid of another person to perform the personal functions required in everyday living.  A veteran can show they are eligible if they have a substantial need for assistance with the activities of daily living.  Such activities include bathing, dressing, meal preparation, etc.  A veteran would also qualify for this pension if they can show they need the attendance of another person in order to avoid the hazards of his or her daily environment.  The need for assistance does not have to be permanent.

 Under this program, a veteran can receive up to  $1,644.00 per month or $19,736 per year in benefits, and a widowed spouse can receive up to $1,056.00 per month of $12,681 per year in benefits.  The applicant must be “permanently and totally disabled” under the VA rules.

The vet does not need to be helpless under the rules. He only needs to show that he is in need of aid and attendance on a regular basis. Someone who is housebound or in an assisted living facility and over the age of 65 is presumed by the Veterans Administration to be in need of Aid and Attendance.

Eligibility for the program is based on the income and assets of the veteran. In determining income, deductions are allowed for unreimbursed medical expenses (UMEs). In home care workers are an allowable deduction, provided that some medical or nursing services are provided. Also, the cost of an assisted living facility, or a portion thereof, can be an allowable medical deduction against gross income. 

 In addition, a family member can provide in-home care for a veteran who is applying for aid and attendance.  In order to meet the disability criteria, the care services provided by an unlicensed relative must be prescribed by a health care professional (ex. doctor, RN, LPN or licensed physical therapist) and the professional must consult with the unlicensed relative caregiver at least once a month (in person or by telephone) to monitor the regimen.  In addition, there must be a valid care contract in place and the caregiver must be receiving no more than fair market value for services he or she is providing.

If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

 CAVEAT: When planning for this VA benefit, you should also plan for Medi-Cal benefits and coordinate all of this with your elder law estate plan at the same time. An elder law estate planning attorney, who is also accredited by the VA, is best equipped to help you with this planning. When seeking help for this VA benefit, always ask if the person helping you is accredited by the VA.  

 The following are some additional requirements for eligibility:

 a. Be a veteran who served at least 90 days of active duty.

b. At least one day of active duty had to be during wartime: WWII – 12/7/41 to 7/25/47 – Korea – 6/27/50 to 12/31/55 – Vietnam – 8/5/64 to 5/7/75;

c. Does not need to have been in combat;

d. Discharged other than dishonorably;

e. Income less than $1,644 per month, once out-of-pocket medical expenses are considered.

f. Net worth less than approximately $50,000 for singles or $80,000 for couples.

g. Gifting of assets is allowed with no look-back period, but must be coordinated with Medi-Cal planning and gifting, which does have a look-back period.

 If you or someone you know is a Veteran receiving care in an assisted living facility, or at home, please encourage them to file a claim for this benefit. It would be prudent to seek the guidance of an experiended elder law attorney who is accredited by the VA.

Elder Law Today is written by Michael J. Young, Attorney at Law, 1931 San Miguel Dr., Ste. 220,  Walnut Creek, CA 94596. This information is for general informational purposes only, and does not constitute legal advice. For specific questions, you should consult a qualified attorney. MIKE@WALNUTCREEKELDERLAW.COM

For additional information, such as upcoming seminars, past newsletters, and to listen to an interview with attorney Michael J. Young, visit  www.WalnutCreekElderLaw.com.

Office: (925)-256-0298

UPCOMING SEMINARS BY ELDER LAW ATTORNEY MICHAEL J. YOUNG:

Dates: Fridays, January 8 and 22, from 2:00 to 3:30 p.m. at the Law Offices of Michael J. Young, in the Channell Room. For reservations call 925-256-0298.

     Certain assets are generally exempt, or not counted, for Medi-Cal eligibility. The following is a partial list of exempt assets. There are, of course, rules affecting each of these items. As a result, please consult your elder law attorney.

• One automobile is exempt for qualification. Many people think that if they have two cars, they have to sell one to become eligible. This is not true. The second car is counted as an asset, and the value is determined by the Medi-Cal eligibility worker.
• Whole life insurance policies are exempt, provided that they do not have more than $1500 cash in value.  If they do, you must transfer the asset, cash it in, or take other steps to lower the value. Be sure your durable power of attorney has the appropriate elder law/asset protection language in it to accomplish this, in the event you lose the ability to accomplish this yourself.
• You can have term life insurance in any amount.  
• You can transfer monetary assets into an irrevocable final expense trust. This is a good planning technique to lower cash assets for Medi-Cal qualification. When the recipient passes away, the funds can be used at any funeral home in any state. Funds not used are subject to Medi-Cal recovery. Another advantage is that part of the family’s concern about burial plans is taken care of ahead of time.  
•  IRAs, pension funds and work related annuities are exempt. Medi-Cal does have  distribution rules for principal and accrued interest however.  
• $2,000 in cash.  
• Your home is exempt for qualification.  

             By Michael J. Young, elder law and estate planning attorney in Walnut Creek, Contra Costa County, California. Mr. Young’s office is located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. His office number is 925-256-0298 and his e-mail address is LawYoung1@gmail.com. You can go to his web site at www.WalnutCreekElderLaw.com  Mr. Young serves senior clients and their families in Contra Costa and Alameda Counties. He also has many senior clients in Danville, Brentwood, Pleasant Hill, Antioch, Concord, Alameda and surrounding communities. His long term care plans for older clients help families prepare to pay for nursing home costs and to preserve assets. He also helps his clients apply for Medi-Cal and the VA Improved Pension, Aid and Attendance benefit. You may see Mr. Young’s “Nuts and Bolts” Guide to Veteran’s Benefits at the following link. www.walnutcreekelderlaw.com/GuideToVeteransBenefits.html Please check his web site for upcoming seminars.

             For Medi-Cal eligibility, the single applicant must have no more than $2,000 in non-exempt assets in her name. If you just give away your assets, without proper planning, and you want to enter a nursing home, you may create a period of ineligibility for Med-Cal. The ineligibility period begins at the date of the transfer.

             Medi-Cal presently has a 30 month look back period, and they use a divisor of $5,698, which is known as the average private pay rate (APPR). This figure is used to determine the period of ineligibility. So for example, if you transfer $20,000 to a family member, and divide that figure by $5,698 you will have 3.5 months of ineligibility. This is rounded down to three months of ineligibility from the date of the gift. If this gift is made in November, 2009, the applicant would be ineligible for November and December of 2009, and ineligible for January, 2010. She would be eligible in February, 2010.

            If $200,000 is transferred to another individual, (divided by $5,698), 35 months of ineligibility is created. However, Medi-Cal presently has a 30 month look back period. So, after 30 months have passed from the date of this transfer, the applicant would be eligible for Medi-Cal.

             There are also acceptable and legal methods for transferring assets, among family members for instance, which create fewer months of ineligibility. An elder law attorney familiar with nursing home and Medi-Cal eligibility can advise you on these matters.

            By, Michael J. Young elder law attorney in Walnut Creek, CA.

            Mr. Young is an elder law attorney who practices in the east bay. His office is in Contra Costa County, located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA. Mr. Young has East Bay elder law clients who live in such towns as Brentwood, Antioch, Concord, Alamo, Walnut Creek, etc.  Many of his clients are concerned about how they will pay for their nursing home costs. Mr. Young prepares long term care plans for his clients, which may include utilizing Medi-Cal and the Veterans Administration Aid and Attendance Benefit for wartime veterans. www.WalnutCreekElderLaw.com  Lawyoung1@Gmail.com 925-256-0298

For Medi-Cal qualification, the community spouse (well spouse) is allowed to have $109,560 (in 2009) in non-exempt, or countable assets. This is called the Community Spouse Resource Allowance, or CSRA, which increases yearly based upon the Consumer Price Index.

Only non-exempt assets are counted for the CSRA. As a result, IRA’s in the name of the well spouse, which are exempt, are not counted. Also not counted are a car, the house, household goods and jewelry in the name of the well spouse, plus the $109,560. Once the ill spouse is eligible for Medi-Cal, any assets acquired by the well spouse will not affect eligibility of the ill spouse. So, an inheritance received by the well spouse after the ill spouse is qualified, will not affect eligibility of the ill spouse.

In addition, under California law, the well spouse can keep all of her income. In addition, she is allowed to have what is called a minimum monthly maintenance needs allowance of income (MMMNA) of $2,739. If she is under that amount, she can receive a portion of her ill spouse’s income, to bring her up to that amount. 

The impoverished spouse statutes state that if the $109,560 CSRA, and/or the $2,739 MMMNA are insufficient for the well spouse to live on, she can file for an administrative hearing or file a petition with the court to have these amounts raised.

 By Michael J. Young, elder law attorney in Contra Costa County. Our offices are located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. (925) 256-0298. Please visit our website at www.WalnutCreekElderLaw.com

 Michael J. Young, elder law attorney advises clients in Walnut Creek, as well as surrounding  towns such as Danville, Concord, Brentwood and Antioch.