ElderLaw Answers Blog

Nicholas D. Kristof, in a recent column in The New York Times, “Until Medical Bills Do Us Part,” writes about a friend — “M” – who has been advised to divorce her husband so that she will not be impoverished paying for his anticipated long-term care needs.  She was advised to do this by a social worker at the hospital where her husband’s degenerative condition was diagnosed.

This is a second marriage for both M and her husband and they have a prenuptial agreement, which is irrelevant to issues of Medicaid eligibility.

Kristof decries a medical system that forces people to divorce “not because of irreconciliable differences but because of irreconcilable medical bills.”  We could not agree more.  This is the sad reality of our dysfunctional health care and long-term care system.

Another sad reality of our system and M’s situation, however, is that M has been getting bad legal advice.  First, in  any second  marriage in addition to a prenuptial agreement, clients should be advised to purchase long-term care insurance. 

Second, in terms of divorcing for Medicaid planning purposes, it sounds like M was getting legal advice from social workers rather than elder law attorneys.  Divorce is certainly an option, but it is not the only long-term care planning strategy available to clients.  In more than two decades of practicing elder law, not one of my clients has sought divorce for Medicaid planning purposes. 

Another sad reality of our dysfunctional system, is that citizens need qualified elder law counsel to navigate it relatively unharmed.

The financial insecurity of the economic downturn has moved more Americans to value the financial security offered by Social Security, according to a poll recently released by the National Academy of Social Insurance.  While  President Bush could not get much traction even in good economic times for his efforts to privatize Social Security, it looks like he would get even less today.

According to results of the poll, conducted by Benenson Strategy Group, 88 percent of Americans say that Social Security is more important then ever in light of the current economy.  At the same time, they’re worried about the program.  Ninety percent are concerned about its ability to pay benefits to future generations and 44 percent of non-retirees are concerned about it being there for them. 

In what appears to be a new coming to terms with reality, the poll reports that three quarters of respondents agreed that workers should contribute more to the program if necessary to preserve it.  We can hope that this signals a change from the promises of many politicians that American citizens could get something for nothing which have contributed to our nation’s personal and shared budget deficits.

Why is it that opponents of health care reform prefer scare tactics and disruption to honest debate on the issues?  A case in point is the claim that the bill would encourage seniors to commit suicide.  Not true.

The House version of the bill would provide seniors the option of consulting with their doctor on “advance care planning” every five years to discuss their preferences should they become seriously ill. 

Dr. Muriel R. Gillick in a column in today’s Boston Globe explains that while most seniors say that they would like to have end-of-life consultations with their physicians — 89 percent according to one poll — very few actually have such discussions — just 17 percent in the same poll.  Why not? 

The reason is that doctors say they don’t have the time, and they don’t have the time because Medicare does not pay them for having such discussions.  All the House bill would do is to authorize payment for such important discussions between physicians and their patients.  As Dr. Gillick explains:

• The reason it is important to have the conversations is that death is not optional.  What is optional is how we will experience life’s last stage:  Will we be in an intensive care unit or enrolled in hospice?  Discussions about end-of-life care have been shown to result in patients experiencing less depression, less pain, and less anxiety in their final days.

Why do opponents of health care reform distort the facts to deny this care to America’s seniors?

Last week, I interviewed Suzanne Mintz, President and CEO of the National Family Caregivers Association.  She had a wonderful suggestion for all families with aging parents: hold family conferences, both to plan for the future and in the event of an illness or disability.

All too often, misunderstandings occur due to different family members having different and incomplete information.  Often, some family members feel overburdened and are afraid to ask for help or don’t know what they can expect from siblings and other relatives.  Ms. Mintz recommends taking the following steps:

• Meet while everyone is healthy so that everyone can plan ahead and get proper estate and financial planning in place.
• If a crisis occurs, meet to share information and expectations and to divvy up responsibilities.
• Prior to the meeting, everyone should compile a list of what they want to learn and what issues they would like to cover.
• Prepare an agenda in advance.
• Meet in person if possible.  If not, use conference calling or video solutions.
• Use a facilitator, usually a geriatric care manager or an elder law attorney.  But it’s possible that family friends or clergy can serve this role.
• Write down and share any decisions that come from the meeting.
• Hold as many meetings as necessary.

By taking these steps, a lot of misunderstandings can be avoided and no single family member needs to feel entirely alone and overwhelmed.

In a column on the Kaiser Health News website, Howard Gleckman, a Senior Research Associate for the Urban Institute, calls for getting Medicaid out of the long-term care business.  He points out that at more than $100 billion dollars a year, Medicaid pays for about 43 percent of the cost of home and nursing home care.

But it was never designed to do so.  It is the social safety net program for people who are poor and do not have health insurance from other sources.  Unfortunately, for those who do not have long-term care insurance, no health insurance currently covers long-term care, not even Medicare.  As a result, Medicaid has filled the gap, but at great costs to the states who share the cost of Medicaid with the federal government, and at great cost to seniors who must spend down their life savings before they will qualify.

As an elder law attorney who has spent more than two decades helping seniors and their families negotiate the morass of complicated and conflicting rules about Medicaid coverage of nursing home care, I could not agree more with Mr. Gleckman.  Let’s have national long-term care insurance, whether as a new program under Medicare or as an expansion of Senator Kennedy’s CLASS Act, and get elder law attorneys out of the business of helping middle-class seniors qualify for Medicaid.

As The New York Times describes in a recent article, the litigation over Brooke Astor’s estate and will is far from unique.  Where there’s money, there are people who will use improper means to grab it.  Where someone has dementia or is dependent on others for care and companionship, they may be induced to alter their estate plan. 

Where a family member feels scorned for  being left out of the will or left out socially, she may suspect undue influence where none exists.  It can be psychologically necessary to believe that Mom was tricked rather than accepting that Mom loved you less or that some long term resentments were reflected in the will.

All of this can lead to litigation which can be expensive both financially and emotionally.  In most cases, good lawyering can prevent such litigation, but not always. 

Our firm is involved in a case where a woman left everything equally to her seven children.  There’s no dispute over the finances.  But the mother owned antiques, jewelry and other items of financial and sentimental value.  She left a list saying who should receive what, which is what attorneys advise clients to do, and the executrix worked out a system for distributing what wasn’t on the list.  Yet one daughter is challenging both the list and the system, which has led to considerable expense and delay.

In short, the best laid plans can avoid a lot of problems, but some may be unavoidable.

Ted Banther’s Estate Planning and Special Needs Blog provides an excellent primer on what steps to take when looking for a special needs planning attorney, starting with asking friends, family members and other professionals.  He also provides the National Academy of Elder Law Attorneys, the Special Needs Alliance and the Academy of Special Needs Planners as groups whose members provide special needs planning services. 

Unfortunately, Banther gives somewhat more weight to the Alliance, a small (some would say elitist) invitation-only group of attorneys over the Academy, which is open to all attorneys seeking to provide better service to their clients who need special needs planning.  But, of course, I helped found the Academy and was not invited to join the Alliance, so I might be a bit biased.

In a recently issued report, the Kaiser Family Foundation analyzes the long-term care insurance industry to determine whether it might fill the long-term care funding gap.  In 2007, long-term care insurance paid for only about 2 percent of the $200 billion spent nationally on long-term care.   

As baby boomers age, the need for long-term care is likely to skyrocket, further straining individual, state and federal budgets which are already at the breaking point.  The question is whether private long-term care insurance can make a significant dent in current and future costs.

Kaiser in its report, Closing the Long-Term Care Funding Gap: The Challenge of Private Long-Term Care Insurance, produced by the Kaiser Commission on Medicaid and the Uninsured, answers the question in the negative.  While it finds that the policies are beneficial to those that own them, the premium costs are such that only the well-off are purchasing them.  It sees the numbers to continue to grow, but not to the point “that the long-term care insurance market will experience the kind of dramatic growth necessary to shift a substantial portion of the long-term care financing burden from Medicaid and individuals to private insurance.”

According to an article on the Congressional Quarterly website, Sen. Kennedy’s proposal to include basic long-term care insurance in health care reform has been calculated by the Congressional Budget Office to add $58 billion in revenue over the next 10 years.  The proposal, known as the CLASS Act, would give all participants about $50 a day towards their long-term care after paying in a monthly average premium of $65 for five years.

The five year requirement explains the positive cashflow for the first 10 years, since there would be now outflow of funds until year six.  In order to keep the program budget neutral beyond 10 years, Congress may have to increase the premiums or limit the benefit.

The Consumer Federation of America offers a service to consumers purchasing life insurance that helps them to determine whether they are getting the right policy.  For just $75, James H. Hunt, a former Vermont insurance commissioner, will evaluate your policy, tell you its expected return on investment, and if appropriate suggest better alternatives.

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