Attention Vietnam Veterans and Their Families!!!

Are you a Vietnam Veteran who suffers with (or the loved one of a veteran who died of) Parkinson's disease, ischemic heart condition, or a B-cell leukemia or another condition that can be linked to one of these?

Did you (the veteran) or the deceased veteran serve in the Republic of Vietnam, the waterways of Vietnam, or on the Korean DMZ any time from January 9, 1962 thru May 7, 1975?

Did you (the veteran), the deceased veteran, or the deceased surviving spouse (or deceased child or parent) previously file a claim for benefits based upon the veteran having or dying of one of these conditions and was this claim denied?
  

If the answer to all of the above three questions is "Yes", you may now be able to go back and have this previous claim re-opened as a Nehmer class member if you were the original person who filed the claim OR have the original claim opened for accrued benefits owed to this deceased person if you are a family member. 

Normally, if benefits are granted on the basis of a new regulation, the law states that the effective date of the award may not be earlier than the date on which the regulation went into effect.  Nehmer has changed all of this for these Agent Orange claims, making the effective date of the award the later of the date the claim was filed or the date the disability arose.  This can result in a HUGE amount of retro-active benefits; possibly tens to hundreds of thousands of dollars for the claimant.

Accrued benefits paid in the case where the original Nehmer class member has died may be paid to a spouse (regardless of marital status), a child (regardless of age or marital status), parents, or even the estate of the deceased class member.

Because these three conditions are all combat related, a retired military veteran who is receiving military retirement from the Department of Defense can also apply for Combat Related Special Compensation (monetary) benefits from the DOD.  This is a matching amount of money to what the VA has awarded in service connected compensation, provided that the veteran is rated at least 10%.  It is an offset to military retirement, but is non-taxable; whereas, military retirement is taxable income.

In the case of a surviving spouse, please remember that one may be able to go back on prior spouses for VA Dependency Indemnity Compensation (DIC) benefits and it may also be possible for a parent of a single soldier/veteran who died service connected to file for DIC, regardless of that parent's age or when the soldier/veteran died.  Also remember that assets never matter in a DIC claim and income matters only in a parent's claim.

The VA is currently going back and re-opening hundreds of thousands of claims and attempting to contact both veterans and survivors to see if benefits are owed.  Meanwhile, we have an obligation to mention Nehmer to those client's who may have family and friends who served in Vietnam.  Obviously, the VA cannot possibly keep track of everyone.

Reprinted with permission by:

www.info4vets.com

Karen McIntyre, R.N., VA Accredited Agent

President Veterans Information Services, Inc.

IRS Issues Long-Term Care Premium Deductibility Limits for 2012

The Internal Revenue Service (IRS) is increasing the amount taxpayers can deduct from their 2012 taxes as a result of buying long-term care insurance.

Premiums for "qualified" long-term care insurance policies (see explanation below) are tax deductible to the extent that they, along with other unreimbursed medical expenses (including Medicare premiums), exceed 7.5 percent of the insured's adjusted gross income.

These premiums -- what the policyholder pays the insurance company to keep the policy in force -- are deductible for the taxpayer, his or her spouse and other dependents. (If you are self-employed, the tax-deductibility rules are a little different: You can take the amount of the premium as a deduction as long as you made a net profit; your medical expenses do not have to exceed 7.5 percent of your income.)

However, there is a limit on how large a premium can be deducted, depending on the age of the taxpayer at the end of the year. Following are the deductibility limits for 2012. Any premium amounts for the year above these limits are not considered to be a medical expense.

Attained age before the close of the taxable year	Maximum deduction for year
40 or less	$350
More than 40 but not more than 50	$660
More than 50 but not more than 60	$1,310
More than 60 but not more than 70	$3,500
More than 70	$4,370

What Is a "Qualified" Policy?
To be "qualified," policies issued on or after January 1, 1997, must adhere to certain requirements, among them that the policy must offer the consumer the options of "inflation" and "nonforfeiture" protection, although the consumer can choose not to purchase these features. Policies purchased before January 1, 1997, will be grandfathered and treated as "qualified" as long as they have been approved by the insurance commissioner of the state in which they are sold. For more on the "qualified" definition, click here.

The Georgetown University Long-Term Care Financing Project has a two-page fact sheet, "Tax Code Treatment of Long-Term Care and Long-Term Care Insurance."

To download it in PDF format, go to: http://ltc.georgetown.edu/pdfs/taxcode.pdf

This article is reprinted with the permission of ElderLawAnswers.com.

Medicare's Open Enrollment Season Already Underway

This year's holiday shopping season has begun early for Medicare beneficiaries: the program's Open Enrollment Period, during which you can enroll in or switch plans, began October 15 and ends on December 7.

During this period, you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans. Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage.

Even beneficiaries who were satisfied with their plan in 2011 need to review their options for 2012, particularly because things are still in flux due to changes brought on by the health care law. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions and appeals. Medicare Advantage plans can change their benefit package and as well as their provider network.

According to the federal Centers for Medicare and Medicaid Services (CMS), Medicare Advantage premiums are expected to decrease by an average of 4 percent next year from this year, while Part D plan premiums will likely increase about 2 percent to $30 a month, on average.

“There’s no doubt that a lot of seniors are in the wrong plan,” Ross Blair, the CEO of PlanPrescriber.com, a site that compares Medicare plans, told SmartMoney.  “A lot of them could save hundreds of dollars a year by switching.” 

Reaching for the Stars
One change beneficiaries using the Medicare Plan Finder will notice this year is CMS's enhanced five-star rating system.  Plans that have achieved a five-star rating from CMS are identified with a "gold star" icon.  Those that have received a low overall quality rating for the past three years are identified with a "warning signal" icon.  Another new innovation is that there is no time limit to switch into a five-star Advantage or prescription drug plan. Medicare beneficiaries have one opportunity to switch to one of these top-rated plans anytime during 2012. (For more on the significance of the star rating system, see "Medicare Plans See Dollars in the Stars.")

If you want out of your Advantage plan after December 7, you can "disenroll" between January 1 and February 14.  At that point you can return to traditional Medicare and add a Part D plan, or move into a five-star Advantage plan.  But if you return to traditional Medicare you may not be able to buy Medigap coverage at that point, although the rules vary by state.

If you take no action, you will remain in your current plan unless your Medicare Advantage or drug plan is terminating its Medicare contract. Also, if you receive the Low-Income Subsidy (LIS) to help pay for some or most of your Part D drug costs, you may be randomly reassigned to a different plan. (For more on the LIS program, also known as "Extra Help," click here.)

Some factors to consider when evaluating your drug plan include:

• What is the monthly premium?
• Does the plan continue to cover necessary drugs?
• Does the plan provide coverage for drugs in the "doughnut hole" or coverage gap?
• What pharmacies are covered under the plan?

Some factors to consider when comparing Medicare Advantage plans include:

• What is the monthly premium?
• What is the cost-sharing for doctor visits?
• Which doctors and hospitals are covered?
• Is prescription drug coverage included?
• Are any other extra benefits included and will they be useful to you?

(For a MarketWatch article on picking an Advantage plan, click here.)

 

Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals' personal financial information.  Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited.  If you think you've been a victim of fraud or identity theft, contact Medicare.  For more information on Medicare fraud, click here or here.

Here are more resources for navigating the Open Enrollment Period:

• The 2012 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at: www.medicare.gov/publications/pubs/pdf/10050.pdf 

• The Medicare Rights Center: www.medicareinteractive.org

• Your State Health Insurance Assistance Program, which offers independent counseling: https://shipnpr.shiptalk.org/

• Kiplinger's "How to Compare Medicare Advantage Plans"

• Medicare Plan Finder: www.medicare.gov/find-a-plan

• U.S. News on "Understanding Your 2012 Medicare Enrollment Statements"

For more about Medicare, click here.

Adult Children Losing $3 Trillion in Caring for Aging Parents

Americans who take time off work to care for their aging parents are losing an estimated $3 trillion dollars in wages, pension and Social Security benefits, according to a new MetLife study. Meanwhile, the percentage of adult children providing basic care for their parents has skyrocketed in recent years. 

Nearly 10 million adults age 50 and over care for an aging parent, MetLife says. For the individual female caregiver, the cost impact of caregiving in terms of lost wages, pension and Social Security benefits averages $324,044. For male caregivers, the figure is $283,716. 

The study also identified a dramatic rise in the share of men and women providing basic parental care over the past decade and a half. In 1994, only 9 percent of women and 3 percent of men and were providing care. By 2008, the percentage of women caregivers had more than tripled to 28 percent, while the figure for men had quintupled to 17 percent. "Basic care" is defined as help with personal activities like dressing, feeding, and bathing. Daughters are more likely to provide basic care and sons are more likely to provide financial assistance, the study found. 

"Undoubtedly, the impact of the aging population has resulted in increased need within families for family caregiving support," the study notes. 

At the same time, MetLife found that adult children age 50 and over who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents. 

The study was based on an analysis of data from the 2008 National Health and Retirement Study (HRS). 

The findings have implications for individuals, employers and policymakers, MetLife says. Individuals, it says, should consider their own health when caregiving and should prepare financially for their own retirement. Employers can provide retirement planning and stress management information and assist employees with accommodations like flex-time and family leave. 

On the policy side, although only a few states mandate paid family and medical leave, "clearly this policy would benefit working caregivers who need to take leave to care for an aging parent," the study concludes. MetLife also notes that the CLASS Act, a voluntary long-term care insurance program that is part of the new federal health reform law, will provide some coverage for long-term care needs as well as raise public awareness of the issue. 

For more on the study, "The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents," click here.

Reprinted with permission by ElderLawAnswers.com

Currently on The Swinton Law Firm Radio: A Case of Neglect

Barbara Salerno and her family thought their decision to send their 80-year-old father, Albert Salerno, to a nursing home would mean he would be safe and cared for--but they were wrong. Barbara tells the story of how her family was helpless in saving their father even though they visited him nearly every day. Nursing home staff minimized and explained away a sharp downturn in Mr. Salerno's condition. By the time he finally received medical attention; Mr. Salerno was in acute renal failure, had advanced pneumonia and was malnourished. He died a few days later.

Adult Children Losing $3 Trillion in Caring for Aging Parents

Americans who take time off work to care for their aging parents are losing an estimated $3 trillion dollars in wages, pension and Social Security benefits, according to a new MetLife study. 

Meanwhile, the percentage of adult children providing basic care for their parents has skyrocketed in recent years. 

Nearly 10 million adults age 50 and over care for an aging parent, MetLife says. For the individual female caregiver, the cost impact of caregiving on in terms of lost wages, pension and Social Security benefits averages $324,044. For male caregivers, the figure is $283,716. 

The study also identified a dramatic rise in the share of men and women providing basic parental care over the past decade and a half. In 1994, only 9 percent of women and 3 percent of men and were providing care. By 2008, the percentage of women caregivers had more than tripled to 28 percent, while the figure for men had quintupled to 17 percent. "Basic care" is defined as help with personal activities like dressing, feeding, and bathing. Daughters are more likely to provide basic care and sons are more likely to provide financial assistance, the study found. 

"Undoubtedly, the impact of the aging population has resulted in increased need within families for family caregiving support," the study notes. 

At the same time, MetLife found that adult children age 50 and over who work and provide care to a parent are more likely to have fair or poor health than those who do not provide care to their parents. 

The study was based on an analysis of data from the 2008 National Health and Retirement Study (HRS). 

The findings have implications for individuals, employers and policymakers, MetLife concludes. Individuals, it says, should consider their own health when caregiving and should prepare financially for their own retirement. Employers can provide retirement planning and stress management information and assist employees with accommodations like flex-time and family leave. 

On the policy side, although only a few states mandate paid family and medical leave, "clearly this policy would benefit working caregivers who need to take leave to care for an aging parent," the study notes. MetLife also notes that the CLASS Act, a voluntary long-term care insurance program that is part of the new federal health reform law, will provide some coverage for long-term care needs as well as raise public awareness of the issue. 

For more on the study, "The MetLife Study of Caregiving Costs to Working Caregivers: Double Jeopardy for Baby Boomers Caring for Their Parents," click here.

Why You Need to Plan for Long-Term Care

Thinking about a time when you will need help taking care of yourself is not fun. That is why most people put off discussing long-term care until it can't be ignored. But it is better to start long-term care planning early. Here are some reasons to start planning now:

• People are living longer and are more likely to need long-term care. Life expectancies keep increasing, which means you are more likely to need help at some point. At least 70 percent of people over age 65 will require some long-term care services at some point in their lives, according to the U.S. Department of Health and Human Services.
• Care expenses are high. Whether you receive care in a nursing home or at home, expenses are rising. According to the 2010 MetLife Market Survey of Long-Term Care Costs, in 2010 the average cost of a room in a nursing home was $83,585 a year and home care aides averaged $21 per hour. Those figures aren't going to start going down.
• Family caregivers may not be available. In more and more households, both partners work. In addition, children often move far away from their parents. This means that your adult children may not be able to easily take of you when the time comes.
• The earlier you plan, the better. By planning ahead, you may be able to preserve your assets instead of using them all up paying for long-term care. In addition, if you plan early, you may have more options for care.

To start planning for long-term care, talk to your elder law attorney. Planning steps may include executing advance directives and a power of attorney, putting assets in a trust, purchasing long-term care insurance, getting a reverse mortgage, creating a caregiver contract with an adult child, or transferring a house to children. Your attorney can help you figure out the best plan for you.
For more information on the importance of long-term care planning, click here.

What To Do When a Loved One Passes Away

Whether your spouse has just passed away or you've lost your mom or dad, the emotional trauma of losing a loved one often comes with a bewildering array of financial and legal issues demanding attention.

Those issues can wait.  It is more important to take care of your loved ones and yourself first.  When you are ready, the legal issues can be dealt with.

You should meet with an attorney to review the steps necessary to administer the decedent's estate. While the exact rules of estate administration differ from state to state, the key actions include:

• File the will in probate court in order to be appointed executor.
• Collect the assets. This means that you need to find out about everything the deceased owned.
• Pay the bills and taxes. The final income tax return should be filed.  If an estate tax return is due, it must be filed within nine months of the date of death.
• Provide an informal or formal accounting to the heirs and obtain their approval which is then filed.
• Finally, make the final distributions of the remainder of the estate to the heirs.

Estate administration also involves transferring assets that are not controlled by a will.  The distribution of these assets may be controlled by trusts, joint ownership or beneficiary designations. 

For more details on steps surviving family members should take, click here.

A Trip to the Hospital May Put Assisted Living Residents on Medicaid at Risk of Eviction

Assisted living facility residents covered by Medicaid are at risk of being evicted if they leave the facility, even for a temporary hospitalization, the National Senior Citizen's Law Center (NSCLC) warns in a recently released White Paper on the problem. Ironically, Medicaid officials in most states have the power to prevent these evictions but in most cases are not exercising it.  Most state Medicaid programs pay for services not just in nursing homes but in assisted living facilities, which are meant to provide a home-like alternative to nursing homes. But there is a crucial difference between nursing homes and assisted living facilities. The Nursing Home Reform Law authorizes Medicaid to pay a nursing home to hold a room for a Medicaid recipient who is temporarily absent due to hospitalization and entitles the resident to return to the first-available room.  In contrast, Medicaid does not make similar payments on behalf of residents of assisted living facilities and the facilities are not required to give admission priority to returning residents. This difference in treatment, the NSCLC asserts in its report, "Medicaid Payment for Assisted Living: Residents Have a Right to Return After Hospitalization," diminishes the value of assisted living facilities as a community-based alternative to nursing home care. If assisted living facilities truly seek to offer "home or community-based" services, says the advocacy group, residents should have the peace of mind of knowing that they won't be evicted if they are absent for a few days or weeks.  The NSCLC points out that in most cases states could remedy the situation. Most states pay for assisted living care though a Medicaid waiver program. In 2000, the federal Centers for Medicare and Medicaid Services (CMS) advised states that it would authorize the issuance of "retainer payments" to Medicaid waiver home and community based service providers during a Medicaid recipient's temporary absence, such as for hospitalization. The guidance described the retainer payments as being comparable to room-hold payments for nursing home residents. However, it appears that most of the states either do not understand the federal guidance or have not implemented it. Exceptions include Georgia, Illinois, Montana and Washington, all of which make retainer payments to assisted living facilities on behalf of residents who are temporarily absent. The NSCLC makes a number of recommendations: CMS should clarify that Medicaid-funded retainer payments are available for temporary absences from an assisted living facility; State governments should authorize retainer payments up to the federally allowed maximum; Federal Medicaid law should be changed to entitle residents of assisted living facilities to room holds, room-hold payments and readmission to the next available room after temporary absences; Room holds should apply regardless of the reason for an absence. To view NSCLC's White Paper and other materials on the issue, including a News Release and a Policy Brief, click here.

A Brief Overview of a Trustee's Dutie

A trust is a legal arrangement through which one person (or an institution, such as a bank or law firm), called a "trustee," holds legal title to property for another person, called a "beneficiary." If you have been appointed the trustee of a trust, this is a strong vote of confidence in your judgment and probity. Unfortunately, it is also a major responsibility. Following is a brief overview of your duties: Fiduciary Responsibility. As a trustee, you stand in a "fiduciary" role with respect to the beneficiaries of the trust, both the current beneficiaries and any "remaindermen" named to receive trust assets upon the death of those entitled to income or principal now. As a fiduciary, you will be held to a very high standard, meaning that you must pay even more attention to the trust investments and disbursements than you would for your own accounts. The Trust's Terms. Read the trust itself carefully, both now and when any questions arise. The trust is your road map and you must follow its directions, whether about when and how to distribute income and principal or what reports you need to make to beneficiaries. Investment Standards. Your investments must be prudent, meaning that you cannot place money in speculative or risky investments. In addition, your investments must take into account the interests of both current and future beneficiaries. For instance, you may have a current beneficiary who is entitled to income from the trust. He or she would be best off in most cases if you invested the trust funds to generate as much income as possible. However, this may be detrimental to the interest of later beneficiaries who would be happiest if you invested for growth. In addition to balancing the interests of the various beneficiaries, you must consider their future financial needs. Does a trust beneficiary anticipate buying a house or going to school? Will she be depending on the trust income for retirement in 15 years? All of these questions need to be considered in determining an investment plan for the trust. Only then can you start considering the propriety of individual investments. Distributions. Where you have discretion on whether or not to make distributions to a beneficiary you need to evaluate his current needs, his future needs, his other sources of income, and your responsibilities to other beneficiaries before making a decision. And all of these considerations must be made in light of the size of the trust. Often the most important role of a trustee is the ability to say "no" and set limits on the use of the trust assets. This can be difficult when the need for current assistance is readily apparent. Accounting. One of your jobs as trustee is to keep track of all income to, distributions from, and expenditures by the trust. Generally, you must give an account of this information to the beneficiaries on an annual basis, though you need to check the terms of the trust to be sure. In strict trust accounting, you must keep track of and report on principal and income separately. Taxes. Depending on whether the trust is revocable or irrevocable and whether it is considered a "grantor" trust for tax purposes, the trustee will have to file an annual tax return and may have to pay taxes. In many cases, the trust will act as a pass through with the income being taxed to the beneficiary. In any event, if you keep good records and turn this over to an accountant to prepare, this should not be a big problem. Delegation. While you cannot delegate your responsibility as trustee, you can delegate all of the functions described above. You can hire financial advisors to make investments, accountants to handle taxes and bookkeeping for the trust, and lawyers to advise you on questions of interpretation. With such professional assistance, the job of trustee need not be difficult. However, you still need to communicate with those you hire and make any discretionary decisions, such as when to make distributions of principal from the trust to one or more beneficiaries. Fees. Trustees are entitled to reasonable fees for their services. Family members often do not accept fees, though that can depend on the work involved in a particular case, the relationship of the family member, and whether the family member trustee has been chosen due to his or her professional expertise. Determining what is reasonable can be difficult. Banks, trust companies, and law firms typically charge a percentage of the funds under management. Others may charge for their time. In general, what's reasonable depends on the work involved, the amount of funds in the trust, other expenses paid out by the trust, the professional experience of the trustee, and the overall expenses for administering the trust. For instance, if the trustee has hired an outside firm for investment purposes, that expense would argue for the trustee taking a somewhat smaller fee. In any case, it makes sense to consult with a professional experienced with trust work who can guide you on what would be normal fees considering all of the circumstances. In short, acting as trustee gives you a wonderful opportunity to provide a great service to the trust's beneficiaries. The work can be very gratifying. Just keep an eye on the responsibilities described above to make sure everything is in order so no one has grounds to question your actions at a later date.

AARP Sues Government Over Reverse Mortgage Foreclosures

Charging that reverse mortgage borrowers were caught in what amounts to a regulatory bait and switch, the AARP's legal arm is suing the Department of Housing and Urban Development (HUD) on behalf of three now-deceased borrowers' surviving spouses who are facing imminent foreclosure and eviction from their homes. 

The case involves the spouses of individuals who took out Home Equity Conversion Mortgage (HECM), which are the most widely available reverse mortgage and are administered by HUD. A reverse mortgage allows homeowners who are at least 62 years old to borrow money on their houses. The loans do not have to be repaid until the last surviving borrower dies, sells the home, or permanently moves out. 

The borrowers in the AARP case all died, leaving their spouses, who were not listed on the loan documents, living in the mortgaged homes. Because of the housing downturn, the homes are now worth less than the balance due on the reverse mortgage. None of the three spouses -- residents of Indiana, New York and Maryland -- can obtain loans for more than their homes are worth and so are facing eviction. 

Since 1989, HUD rules governing reverse mortgages have stated that a borrower or heirs would never owe more than the home was worth at the time of repayment. But at the end 2008, the Bush administration abruptly changed this policy and said that an heir -- including a surviving spouse who was not named on the mortgage -- must pay the full mortgage balance to keep the home, even it if exceeds the value of the property. This, AARP says, violates existing contracts between reverse mortgage borrowers and lenders. 

"HUD has illegally and without notice changed the rules in the middle of the game at the expense of vulnerable older people," said Jean Constantine-Davis, a senior lawyer with the AARP Foundation, the organization's charitable unit. 

A spouse might not be named on the mortgage for a number of reasons: one spouse may have taken out the reverse mortgage before the marriage, or one spouse may be under age 62 and ineligible, or, more likely, lenders often encourage the younger spouse not to be named as a borrower because then the loan amount can be bigger. AARP notes that, perversely, under HUDs current rule a stranger can purchase the property for its current appraised value, but a surviving spouse cannot. The policy also negates a key purpose for which borrowers pay for insurance, AARP adds, pointing out that reverse mortgage borrowers have always paid insurance premiums to protect against going "underwater" -- owing more than their homes are worth. 

The suit charges that HUD is ignoring another provision of the HECM program that protects a surviving spouse from being arbitrarily displaced from the home upon the death of the borrower. 

"This is shameful and we intend to make HUD honor the representations and promises they made to borrowers when they signed up for these government-insured loans," Steven A. Skalet, of Mehri & Skalet, the law firm pursuing the case for the AARP Foundation. The case was filed in Federal District Court for the District of Columbia. HUD had no comment on the pending litigation. 

Nearly one-quarter of all mortgaged homes are underwater, according to CoreLogic, a housing data firm.
For AARP's news release on the lawsuit, click here.
For a New York Times article on the case, click here. For excellent analyses by the Times and Reuters, click here and here.
For more on reverse mortgages, click here.

Mickey Rooney Headlines Senate Hearing on Confronting Growing Problem of Elder Abuse

Legendary actor Mickey Rooney told a packed Senate hearing room last week of the emotional and financial abuse that he has endured in recent years. 

"I was eventually and completely stripped of the ability to make even the most basic decisions in my own life," Rooney said. "If elder abuse happened to me, Mickey Rooney, it can happen to anyone." 

In fact, financial and physical mistreatment is happening to a large and growing number of "anyones" at a time when government resources to deal with such cases are plateauing or diminishing. Rooney's story was part of a Senate Special Committee on Aging hearing exploring the nationwide trends of abuse, neglect and financial exploitation of seniors. 

At the hearing, the Government Accountability Office released a study estimating that 14 percent of elderly Americans experienced some form of abuse in 2009. However, in all likelihood this is a significant undercount of the dimensions of the problem, witnesses said. A study of elder abuse in New York, also unveiled at the hearing, concluded that for every elder abuse case that is reported, another 23 to 24 go undetected. 

In most states, Adult Protective Services (APS) caseworkers are the first responders to reports of abuse, neglect, and exploitation of vulnerable adults. But according to a new AARP-funded national survey, support for these programs is not keeping pace with the growing crisis. The study found that in 2010, 24 states plus the District of Columbia reported increased calls for APS, with all of the states naming financial exploitation as a cause of the increased calls. 

But despite a rise in the number of APS calls, only three reporting states -- Alaska, Idaho, and Nevada -- increased APS spending in 2010, while the rest either maintained current funding levels or actually reduced spending. 

The AARP observes that The Elder Justice Act, which was part of the new health reform law, authorizes a direct federal funding stream for state APS programs, as well as money for state grants to test ways to improve APS. Nevertheless, Congress has not yet appropriated these funds. 

Sen. Herb Kohl (D-WI), who chaired the Senate hearing, urged committee members in attendance to help pass legislation to improve federal, state and local agency cooperation in fighting elder abuse. Kohl later reintroduced his "Elder Abuse Victims Act," which would establish an Office of Elder Justice within the Department of Justice and strengthen the coordinated law enforcement response to cases of elder abuse. 

For more on the hearing, click here. 

For more on Rooney's testimony, click here. For YouTube excerpts of his testimony, click here.

Group Calls for Federal Probe into Florida's Firing of Nursing Home Advocate

A nursing home advocacy group is calling on the federal government to investigate Florida governor Rick Scott's recent removal of the director of the state's Long-Term Care Ombudsman Program. 

Every state is required to have an ombudsman program that serves as an independent voice for nursing home residents -- addressing resident complaints and advocating for improvements in the long-term care system. As ElderLawAnswers reported earlier, shortly after taking office, Gov. Scott ousted Brian Lee, who during his seven years directing Florida's ombudsman program had gained a reputation as a staunch advocate for the elderly. After Scott, a Republican, won the governorship last November, the Florida Assisted Living Association, an industry group, sent him a letter recommending an individual to replace Lee, one who would presumably be friendlier to their industry. 

Lee's removal has alarmed The National Consumer Voice for Quality Long-Term Care, a leading advocate for long-term care residents nationwide. In a letter to the head of U.S. Administration on Aging, the Consumer Voice's Executive Director Sarah F. Wells charges that "Mr. Lee was forced to resign from office at the request and recommendation of nursing home and assisted living operators." Wells calls on the federal agency to "investigate the reasons for Lee's dismissal as potential willful interference and detrimental impact on the ability of the State Ombudsman to advocate on behalf of the long-term care residents of the state," and notes that willful interference with the ombudsman's job is illegal. 

ElderLawAnswers has obtained a copy of the letter that the Florida Assisted Living Association sent to Governor-elect Scott recommending an individual to replace Lee. To see the letter, click here. 

Some of the state's 17 councils of volunteer ombudsmen are considering legal action and/or filing a formal complaint with the U.S. Attorney General.

Florida Governor Heeds Nursing Home Industry and Fires Advocate for Elderly

Florida governor Rick Scott is making headlines for canceling the state's high-speed train project, but in another, less-noticed move he may be derailing protections for long-term care residents by firing their chief advocate in the state. The decision, an apparent capitulation to the wishes of the long-term care industry, has alarmed resident advocates, who fear a decline in their ability to protect the institutionalized elderly from substandard care and abuse. 

"We are very concerned that the governor of Florida has yielded to industry demands to dismiss an effective advocate for residents in a state that so many elderly Americans choose as their retirement home," said Sarah F. Wells, executive director of the National Consumer Voice for Quality Long-Term Care, in a press release.

The ousted advocate, Brian Lee, was director of the Florida Long-Term Care Ombudsman Program, a position he had held for seven years. Every state is required to have an ombudsman program that serves as an independent voice for residents -- addressing resident complaints and advocating for improvements in the long-term care system. Florida is perhaps unique in the nation in that all of its 300 ombudsmen are volunteers, not paid employees. The volunteers make annual inspections of licensed long-term care facilities and try to resolve problems.

"The ombudsman's role is to focus very narrowly on the representation of the residents," Hank Stevens, a volunteer ombudsman in Broward County, told ElderLawAnswers. "These vulnerable citizens have no lobbyists, trade council, or collectively, any representation -- except for what the volunteer ombudsmen provide. In the process of doing that, I suspect that we are, at best, a bit of a frustration for the long-term care industry." 

By all accounts the volunteers' leader, Brian Lee, was a passionate champion of the elderly, but one who crossed swords with the long-term care industry more than once. Immediately prior to his removal he had requested that the state's 677 nursing homes make public the names of their owners and operators, something that is required under the new federal health care law. Earlier, he had asked owners to demonstrate they had enough food and water set aside for residents in case of an emergency like a hurricane. 

When Republican Rick Scott won the governorship, the Florida Assisted Living Association sent him a letter recommending that Lee be replaced with someone friendlier to their industry. Scott seems to have listened, although Lee was given no explanation for his removal, according to the Miami Herald. (Governor Scott's office has not responded to ElderLawAnswers' request for comment.) 

In the weeks prior to Lee's firing, his army of volunteer ombudsmen worked hard to save his job. The heads of all 17 of the district offices in the state ombudsman program signed a letter to the governor calling Lee "the guiding light of the program. He has transformed the program's culture from one that was regulatory-focused to one that is now resident-centered, doing what is right for some of Florida's frailest citizens." 

Fears That Oversight Will Be Compromised
 
Advocates in the state are worried that Lee's removal signals the start of a weakening in the ombudsman's role in protecting elderly residents of long-term care facilities. 

"There is concern that members of the industry have a very strong lobby and would like to do away with many of the ombudsman's capabilities, especially the inspections of the nursing homes," said Linda Stevens, Hank Stevens's wife and also a volunteer ombudsman in Broward County. "I think politically the firing of Brian Lee is to move in the direction of lessening our capabilities to advocate for these residents." 

Lee, 39, is quoted in the Sarasota Herald-Tribune as saying he was proud to have renewed the ombudsman program's focus on resident rights during his tenure.  "I'm very glad I never compromised my principles or those of the program," Lee said.  The volunteers are now reaching out to lawmakers in the state to try to win back Lee's job.

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For a Miami Herald article on the Lee's removal, click here.
For more on the nation's long-term care ombudsman program, click here.

Currently on The Swinton Law Firm Radio: When to Use an Elder Law Attorney

My website, www.swintonlaw.com,  has a link to Elder Law Radio. The current show is summarized below.  You can listen online or download it for later.

I hope you find it informative.
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The Swinton Law Firm Radio

When to Use an Elder Law Attorney   Peter J. Strauss with Harry Margolis

Peter J. Strauss is co-director and founder of the Elder Law Clinic, which provides representation to persons for whom a guardianship is sought and serves as court evaluator in guardianship proceedings. He also teaches the Elder Law course. He has been an adjunct professor at New York Law School since 1992 and was named distinguished practitioner in residence in the fall semester 2003.

The Five Phases of Retirement Planning

Retirement has changed radically over the last several decades in America. Years ago, you expected to work most of your life for a single, large employer and you then count on a pension. "Retirement planning" meant figuring out how to use your free time. Today, in all likelihood you will be living in retirement on money you, yourself, saved. "Planning" means calculating rates of return and deciphering tax rules. 

This change from institution-funded to self-funded retirement constitutes a dramatic shift of responsibility. In recognition of this shift, ElderLawAnswers has significantly expanded its ElderLaw 101 section on Retirement Planning, providing you with information you can use no matter where you are in the continuum of retirement planning. 

The section begins with an explanation of the stages along that continuum -- the five phases of retirement planning and the key aspects of good planning to be carried out during each phase. Below is a summary.

PHASE I: Accumulation
This period begins when you enter the workforce and begin setting aside funds for later in your life, and ends when you actually retire. If your employer offers 401(k), 403(b), or 457(b) plans, have you signed up and are you contributing the maximum allowed? Did you know that the "new normal" requires retirement savings rates for most Americans to exceed 10 percent? If self-employed, are you shortchanging yourself on Social Security in order to reap tax deductions? 

PHASE II: Pre-Retirement
This phase occurs during the final years of the accumulation phase and should begin when you reach 50 years old or are 15 years away from retiring, whichever happens first. Now is the time to get your plan in place, making sure your finances are lined up correctly for retirement day so nothing will be left to chance. If you work for a company with a benefits specialist, arrange an appointment to become informed about the various ways you can convert your employer retirement savings into a stream of income or an IRA. Consider using a tool known as "scenario planning." Start learning about Social Security and your options for beginning to receive retirement benefits. Familiarize yourself with the basics of Medicare. 

PHASE III: Early-Retirement
This phase lasts from the day you retire until you are 70 years old. (For those who do not plan to retire until well into their 70s, some tasks in this phase may occur later.) A key purpose of this phase is to create a clear communication channel with your family so information can be shared, questions asked and answered, and decisions made in a calm, supportive way. It's also the time to assess how well your finances are working now that you are using your retirement savings. Fine-tune your income and expense projections, taking into consideration how you will meet minimum distribution requirements from your tax-deferred accounts. 

PHASE IV: Mid-Retirement
This phase begins at age 70 and lasts as long as you are able-bodied and high-functioning. Despite your good health, begin looking at what steps you would like your family to take should your condition decline significantly. In most cases your ability to make all your own decisions, care for yourself, engage with the world on your terms, and manage your affairs does not vanish in a split second. It takes courage to dive into a conversation about giving up and transferring control. 

PHASE V: Late-Retirement
This phase begins when your health has taken a turn for the worse and there is little likelihood of it being fully restored. You require significant help to function day to day. The hope is that by this point all the planning done in prior years makes this transition as manageable and life-affirming as possible.

Elderly Woman Can Sue Law Firm for Unfair Debt Collection

An 85-year-old New Jersey woman who missed her final mortgage payment because she was hospitalized can sue a law firm for unlawful debt collection, even though the law firm contacted her lawyer about the debt and did not contact her directly, a federal court has ruled.

Dorothy Rhue Allen missed her final mortgage payment of $432 on the house she had owned since 1976 because she was in the hospital. The mortgage company began foreclosure proceedings against Ms. Allen through a law firm. When Ms. Allen's lawyer asked how much she would have to pay to resolve the problem, the bank and law firm told her the total charges would be $5,797, including nearly $2,400 in legal fees.

Ms. Allen sued in federal court, alleging these charges were much higher than allowed under the Fair Debt Collection Practices Act. A district court judge dismissed the case, finding that the charges were not covered by consumer protection law because they were sent to Ms. Allen's lawyers. However, a federal appeals court found that the communication to Ms. Allen's attorney was an indirect communication to Ms. Allen and sent the case back to the district court to revisit. Other appeals courts have been divided on this question.

Ms. Allen's attorney, Lewis Adler, who has described his client as "just a wonderful little old lady that got sick," has asked the court to certify the case as a class action, alleging that what happened to Ms. Allen is part of a pattern of systemic abuses by lenders handling foreclosures during the recent real estate bust.

For an article on the case from the Washington Post, click here.
To read the full text of the decision, click here.

Proposed Chinese Law Would Require Adult Children to Visit Elderly Parents Regularly

  
Adult children in China would be required to visit their elderly parents on a regular basis under a proposed amendment to the nation's Law on Protection of the Rights and Interests of the Aged.
Wu Ming, an official with the Ministry of Civil Affairs, is reported as saying that the amendment would allow elderly parents ignored by their children to go to court to claim their legal rights to be physically and mentally cared for.

China has 167 million citizens over age 60, half of whom live alone without children and 20 million of whom cannot take care of themselves. In traditional Chinese culture, filial piety -- respect for one's parents and ancestors -- is one of the paramount virtues. But the longstanding tradition of children caring for aged parents is being challenged by history's largest human migration, in which 130 million Chinese have moved to cities in search of jobs, leaving nearly 60 million growing up apart from one or both parents, according to a recent article in the New Yorker. In effect, capitalism appears to be undermining traditional values, and the state's attempted solution is to legislate morality.

Wang Shichuan, a news analyst quoted by the site CriEnglish.com, questioned whether a moral issue is susceptible to a legal solution. Wang noted that many adult children work outside their hometowns and have little opportunity to visit their parents due to all-consuming jobs and few days off.

The Ministry of Civil Affairs is set to submit the proposed amendment to the Legislative Affairs Office of the State Council in the near future, according to the news site Global Times.