At present there is no look-back or penalty imposed against claimants seeking VA Aid and Attendance Pension benefits who transferred assets prior to application. However, that could change.
Senator Ron Wyden of Oregon recently introduced SB 748 which would create a look-back period and penalty for persons who transfer assets prior to applying for VA Aid & Attendance Pension benefits. SB 748 addresses several key points:
- A look back period of 36 months, beginning the date of application;
- A period of ineligibility for assets transferred prior to application, including transfers to trusts, annuities, or other financial products;
- The period of ineligibility (not to exceed 36 months) will be calculated by taking the amount transferred and dividing it by the monthly pension amount the applicant would have received;
- The ability to fully cure a gift; and
- Hardship provisions for a veteran or surviving spouse.
According to http://www.govtrack.us/congress/bills/113/s748, this bill has a 46% chance of getting past the congressional committee, and a 9% chance of being enacted.
If you are considering applying for VA Aid & Attendance Pension benefits you should act now to preserve assets!
On April 16, 2013 Gov. Jan Brewer signed into law SB1232, which among other changes to Arizona’s laws governing trusts and estates, provides that a probate proceeding shall not be required by law unless at death the decedent owned assets subject to probate transfer worth more than $100,000.00 (increased from $75,000.00) in equity in real property, or more than $75,000.00 (increased from $50,000.00) in personal assets (e.g., bank and brokerage accounts, and vehicles). This change will go into effect 90 days after the legislature convenes. Specifically, the Transfer of Title to Small Estates by Affidavit statute, A.R.S. §14-3971, was amended to effect this increase. If a personal representative is not appointed, persons entitled to the decedent’s personal property may collect said assets/accounts 30 days after the decedent’s death by Affidavit. Similarly, 6 months after the decedent’s death, successors in interest to decedent’s real property may collect real property by Affidavit. Persons may still wish to open probate on lesser valued estates for a variety of reasons. This change in law simply increases the mandatory estate value(s) at which a probate proceeding is required.
Your health care power of attorney appoints someone to make medical decisions for you, if you cannot, and your Living Will states your preferences concerning end-of-life medical treatment to be followed. While these are very important documents, they will do you and your family no good if they cannot be readily located at time of need! We recommend that you do the following with your medical directives:
- Provide a copy to the Agent(s) designated, or at a minimum tell your Agent(s) where you keep these documents;
- Provide a copy to your physician(s)’ office(s) for your file;
- Provide a copy to your local hospital;
- Register your advance medical directives for free with the Arizona Secretary of State Advance Directives Registry for electronic storage and receipt of wallet ID which is handy in case of emergency. See www.azsos.gov for details.
The Treasury Department does not recognize a financial power of attorney for the purposes of negotiating federal payments, including Social Security. Rather, Social Security Administration has its own set of rules as to who it will recognize as having authority to manage the social security payments when the recipient is not able to manage his/her own social security monies. This person is referred to as the “Representative Payee”, and must account annually to Social Security Administration for the expenditure of the monies.
Let’s assume you are the agent under a power of attorney and pay all the bills for someone who can no longer manage his/her own financial affairs. If their social security income is direct deposited into their checking account, you as Agent have authority to manage the funds in the account under state law, which by default includes the social security monies. However, in that instance the Social Security Administration simply assumes the SSA recipient is competent since Social Security Administration has not been notified otherwise. However, if you wanted to redirect the deposit of social security funds into a different account you would be unable to do so unless you became the “Representative Payee” as designated by Social Security Administration. For more information on becoming a Representative Payee go to www.ssa.gov/payee or call your local social security office.
You may have been told by a hospital or care facility social worker that your aging loved one should be admitted to an inpatient psychiatric unit for a couple of weeks for stabilization and treatment. Perhaps they have suffered a UTI, a traumatic event, or their medications are off-balance. How do you get him or her there? Perhaps someone in a psychotic state is in no condition or lacks the understanding to admit himself into such a place. In order to admit your loved one into an inpatient psychiatric unit, or what is called a level one behavioral health facility, you must have the proper legal authority.
It has come to our attention recently that families with loved ones who are recommended be admitted to a level one behavioral health facility are receiving a lot of conflicting, and often incorrect, information from numerous sources. And, many of our clients have a difficult time understanding the complex requirements for guardianship court proceedings. As a result, we are often having to assist the families to clean up the mess they created by acting under incorrect information of a complex court system.
Arizona law provides that a patient may be legally admitted into a level one behavioral health facility in one of the following four ways:
- The patient may self-admit with informed consent.
- *Warning: A patient’s mental state may not be adequate to provide informed consent.
- Informed consent means a voluntary decision following presentation of all facts necessary to form the basis of an intelligent consent by the patient with no minimizing of known danger of any procedures. (Arizona Revised Statutes § 36-501)
- Existing authority:
- Valid Mental Health Power of Attorney
- Must state specifically that the agent appointed has authority to admit the patient to a level one behavioral health facility (inpatient psychiatric unit). (See ARS §36-3283)
- Inpatient Mental Health Authority granted in an existing Guardianship
- This is usually the case if guardianship with inpatient mental health authority was already put in place due to a prior admission to a psych unit.
- Surrogate authority followed by Temporary Guardianship (See ARS§36-3231(E))
- If the patient has no:
- Ability to give informed consent,
- No valid, existing mental health power of attorney with specific authority to admit the patient to a level one behavioral health facility, and
- No existing guardian with inpatient mental health authority,
- And without immediate hospitalization, the patient is likely to:
- Suffer serious physical harm or illness, or
- To inflict harm on another person,
- Then the patient may still be admitted to a level one behavioral health facility by any surrogate as long as the surrogate causes a petition to be filed in court within 48 hours of admission(or the day following a weekend or holiday if that is when the 48 hours expires) for either:
- A Title 36 court-ordered evaluation, or
- A Title 14 temporary guardianship requesting mental health authority to admit the patient into a level one behavioral health facility. (*Although a petition for Title 14 permanent guardianship is typically also filed for at the same time as the petition for temporary guardianship, the petition for permanent guardianship alone is not sufficient in most cases.)
- The following may serve as a surrogate to admit the patient, listed in order of priority:
- Spouse (unless legally separated)
- Adult child of the patient
- Parent of the patient
- Patient’s domestic partner
- Sibling of the patient
- Close friend, who shows special concern and is familiar with the patient’s health care views, and is willing and able to become involved in the patient’s health care and to act in the patient’s best interests
- Attending physician of the patient, with the approval of an institutional ethics committee or, if none, another physician
As we mentioned, the Arizona court requirements for appointment of a Guardian with Inpatient Mental Health Authority are complex, including but not limited to:
- Filing various Court documents
- Required tutorials
- Providing proper notice of the Petitions and hearings
- Attending Court hearings
- Annual obligations of the Guardian
In addition, another important and often overlooked requirement of filing for guardianship is to consider whether a conservatorship is also required for proper handling of your loved one’s financial affairs. Our experienced attorneys can help you to navigate the guardianship court system. For more information, please contact our office.
Yesterday, March 25, 2013, The Arizona Department of Health Services awarded the Phoenix-area’s $1 billion behavioral health contract to a joint bid by Mercy Care Plan and Maricopa Integrated Health System. That means Magellan Health Services no longer will be the Regional Behavioral Health Authority for Maricopa County, beginning Oct. 1, 2013. The RBHA contract is for the management of the publicly funded behavioral health system that delivers mental health, substance abuse and crisis services for adults, youth, and children and includes an integrated behavioral and physical health care system for individuals with Serious Mental Illness.
Many are aware that there is a freeze on new enrollment of adults without children for the AHCCCS Care program (Medicaid health insurance). What many are not aware of are the exceptions to that freeze for certain groups of people who typically require a high level of ongoing medical treatment. Specifically, those who would enroll under AHCCCS Care may now be covered under the AHCCCS SSI-MAO program, which is available for adults without children who are (1) over age 65, (2) blind, (3) disabled, (4) seriously mentally ill, or (5) have HIV/AIDS.
Those adults without children who are currently enrolled with AHCCCS Care can retain their benefits as long as they timely renew their benefits and still meet the eligibility requirements. If they fail to renew or meet the eligibility requirements, they must reapply and may not be able to re-enroll unless they meet one of the exceptions to the enrollment freeze. If adults without children that do not meet any of the exceptions for the AHCCCS SSI-MAO program are wrongly denied renewal of benefits, they should consider an appeal of the decision to avoid the freeze on their re-enrollment.
For more information, please contact us or visit the AHCCCS website at www.azahcccs.gov.
Imagine not being able to see to learn in school, hold a job, or perform daily tasks. These are real challenges for persons around the world that do not have access to or cannot afford eyeglasses and/or vision care. In particular, many elderly cannot afford new eyeglasses as their prescription needs change.
How can you help? DONATE GENTLY USED PRESCRIPTION EYEWARE!
Give new life to your old eyewear! That pair that you or your loved one no longer wears can help needy persons see clearly and fulfill their dreams. Ms. Bivens recently found 12 pairs (!!) of outdated prescription eyeglasses at her 80 year old father-in-law’s house. He agreed to donate the lot and felt great about it. Why not ask your elderly family members if they would also like to make a donation? Whether you are environmentally conscience, moved to help someone in need, or just want more drawer space, this is a great humanitarian act!
Where can you donate? OneSight and Lions Sight & Hearing Foundation of MD21 are volunteer organizations that will recycle and deliver your old glasses to needy persons throughout the world. For more information see www.onesight.org or www.lions-sight-and-hearing-foundation.org.
To donate to OneSight simply drop off your old eyeware to any LensCrafters, ILORI, Optical Shop of Aspen, Pearle Vision, Sears Optical, Target Optical or participating local practitioner.
To donate to Lions Sight & Hearing Foundation of MD21 simply drop off your old eyeware to their location at 3427 North 32nd Street, Phoenix, AZ 85018, a local community Lions Club collection location, or any Walmart Super Center that has a Vision Department (Arizona).
The Department of Health and Human Services (HHS) announced on February 21, 2013 that it would provide 25 states with funding through the State Innovation Models Initiative to develop and test innovative payment and service delivery models that have the potential to lower costs for Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP), while maintaining or improving quality of care for program beneficiaries. The first six states selected (Arkansas, Maine, Massachusetts, Minnesota, Oregon and Vermont) will use funds to test multi-payer payment and service delivery models, including Accountable Care Organizations, on a broader scale within their state. Another 19 states will receive awards to further develop proposals for comprehensive health care transformation, HHS said. Note, Arizona was not one of the 25 states selected.
Medicaid, jointly funded by federal and state funds, accounts for about one-quarter of state budgets nationwide and has taken on new urgency as a funding item since the recession expanded the program’s enrollment in many areas. One of the biggest cost areas includes about 10 million people known as “dual-eligibles” because they qualify for both Medicaid and Medicare. The group, which includes some of the oldest and sickest Americans, represents 15 percent of the Medicaid population but 40 percent of Medicaid spending. “I understand the real sense of urgency that states feel to improve the health of their populations, while also reducing total health care costs, and it’s critical that the many elements of health care in each state – including Medicaid, public health, and workforce training – work together,” Health and Human Services Secretary Kathleen Sebelius said in a statement.
The innovations are seen by healthcare policy experts as a potential lever for reining in healthcare costs in Medicaid, the Medicare program for the elderly and disabled, and potentially spending across the $2.8 trillion U.S. healthcare system. Medicare and Medicaid, which together serve about 100 million people, are expected to spend a combined $1.1 trillion in 2013, according to the federal Centers for Medicare and Medicaid Services. By 2021, spending on the two programs is forecast to top $1.9 trillion.
HHS is also released a new report titled Medicaid Moving Forward, which underscores the innovative efforts states and HHS have already undertaken to improve care and lower costs in their Medicaid programs. For more information on the Medicaid Moving Forward report released today, please go to: http://www.medicaid.gov/State-Resource-Center/Events-and-Announcements/Events-and-Announcements.html. For more information on the awards announced today, please go to: http://innovation.cms.gov/initiatives/State-Innovations.
As our population ages, there will certainly be more Medicare and Medicaid dual-eligibles in all states. In fact, it is estimated that 10,000 people turn 65 years old every day in the US. It will be interesting to see how these inaugural 25 states grapple with the challenge of both improving care and reducing costs under President Obama’s Affordable Health Care Act.
Among all the changes you must make when you move to a new state you should also have your Estate Plan reviewed. Technically, your health care power of attorney and Living will should still be valid in Arizona (so long as it was validly executed in your old home state). However, you should consider whether the nominated Agents make sense based on your new location. In addition, in Arizona we have a specific statute that allows you to execute a Mental Health Power of Attorney, which among other psychiatric treatment, allows your Agent to consent to in-patient psychiatric treatment in a level one behavioral health facility (i.e., psychiatric hospital). While you may think to yourself at this point, I don’t need this because I do not suffer from a mental illness you should reconsider. As an elder law attorney, I handle many mental health guardianship cases a year where elderly persons with Alzheimer’s, dementia, Parkinson’s and other diseases suffer from related psychiatric disorders, such as paranoia, delusions, or extreme agitation, and require such medical intervention. Without a Mental Health Care Power of Attorney in place, you and your family could end up unnecessarily incurring significant legal fees to get you the treatment you need. As such, I recommend to all my clients they have a Mental Health Power of Attorney just in case. After all, it is better to be prepared than not. Note, this is an Arizona specific power of attorney, and you will not have this if coming from another state.