Testifying at the State House
September 7, 2011
Earlier this summer, I made the big trek to Boston, all the way to the State House. (We are so lucky on the South Shore, we get to take a boat to Boston!) Along with some colleagues, I testified on some bills that we have before the legislature. “We” being the Massachusetts chapter of the National Academy of Elder Law Attorneys (MassNAELA).
A friend who works in the State House took this photo of me with
Justice Louis Brandeis!
You may already know that MassHealth has a 5-year “lookback.” That means that if you ask MassHealth to pay your nursing home bill, they look back over the last five years to see if you have made any transfers, or gifts. If you have, then MassHealth will deny your application for benefits, the rationale being that you should have known that you would need a nursing home within five years and would need that money.
Technically, the law instructs MassHealth to deny applications where the applicant gave her money away with the “intent” of qualifying for MassHealth. But what about the situations where people are healthy, don’t anticipate medical deterioration in the near future, and are following the natural instinct to help their kids, for example, with college, a wedding, or tough times?
I was asked to testify on a case I have currently, which I can’t describe much because of client confidentiality. Let’s just say that Mrs. Beautiful has lived a very difficult life, financially and emotionally. About three years ago, she won a settlement in a class-action lawsuit, and even though she had so little money of her own, she immediately gave it to her grandchildren for college. She was determined that they would have a better shot at life than she had. At that time, her health was fine, with no hint of an upcoming turn.
About six months ago, her health suddenly declined and her mind slipped. Staying at home didn’t work, and she moved to a nursing home. She and her husband have very little money, so they applied for MassHealth. They of course denied her application, since she had given money to her grandchildren. Despite what the law says, MassHealth didn’t bother to consider whether Mrs. Beautiful gave that money away for the purpose of getting out of paying her future nursing home bill, or if she did it driven by an instinct to do right by her grandchildren, during a time when her health was fine.
MassNAELA’s bill would clarify the law and create a more precise process by which MassHealth must determine whether an applicant transferred assets with the intent of qualifying for MassHealth or whether they made gifts to their family during times of good health, for all the right reasons that families help each other.
What Goes into a Caregiver Contract?
September 21, 2009
If as a parent and child, you have agreed that the child will care for her parent in exchange for compensation, you need to work with an elder law attorney to draft a caregiver contract, as discussed in earlier posts.
What will your attorney put into the contract? She will list details of the care to be provided, ranging from the hands-on care, meal preparation, shopping, laundry, to the right to a private room and evening quiet hours. Most likely, the attorney will bring in a geriatric care manager to develop a thorough care plan, and the attorney will incorporate the terms of that plan into the contract.
Rate of pay will be included. Can you just ask your parent to pay whatever salary you would like? No. The rate will be based on comparable work performed by professional agencies in your geographic area, such as home health care agencies.
The attorney will also help you arrange for the appropriate payroll deductions, such as Social Security and worker’s compensation.
Beware of trying to write a caregiver contract on your own – this contract will very likely be scrutinized in the future by MassHealth, Social Security, and the IRS. Avoid issues with these agencies later by working with an elder law attorney now to draft an appropriate contract.
Paying Your Children to Care for You? Put it in Writing.
August 30, 2009
As they need more help with daily tasks, many parents prefer to have their kids helping them rather than hiring an aide. And many children want to be helping their parents, if only they could afford to quit their job.
One solution is for the parent to hire the child. I discuss some of the nuts and bolts of how to draft a caregiver contract in another post. I also previously discussed the advantages of caregiver contract in a down economy.
The message for this post is that if you plan to hire your child, or if you plan to work for your parents, everything must be in writing. If the parent eventually needs to apply for MassHealth, your chances of having the application approved significantly increase if the agreement was in writing during all those years that the child provided care. If it is not in writing, MassHealth may well declare that any money passing from the parent to the child was a gift – and a gift disqualifies a person from receiving MassHealth assistance.
Working with an elder law attorney will improve your chances of having the agreement approved by MassHealth, because an elder law attorney understands what needs to be in the contract not only to satisfy MassHealth, but also to help you comply with Social Security laws, income tax regulations, and employment laws.
Always Keep Time & Expense Records When Helping Another
August 6, 2009
So many children, nieces and nephews, and good neighbors pitch in to do heavy lifting for an aging or disabled family member or friend. You may be running errands, cleaning out a basement, doing weekly grocery trips. We do these things on a volunteer basis, usually receiving just reimbursement for purchases made. And when the hours pile up – like cleaning out a house or overseeing home remodeling – elders often insist on paying their helpers for their time.
If you are doing this sort of work for an elder or disabled person, it is imperative that the person you are helping (or you yourself, if she can’t), keep good records of expenses and time spent.
While this may feel wrong to you – afterall, you are doing this work out of kindness, it’s not a business arrangement – a lack of records can spell big trouble for the elder or disabled person later. If they will ever be turning to MassHealth (Medicaid) for care, whether at home, assisted living, or in a nursing home, MassHealth will examine the last 5 years of the applicant’s bank records. She will need to explain – and document – why she was paying you.
Without accurate records and receipts, MassHealth will likely reject the elder’s application. At that point, the only way for her to get the care she needs from MassHealth will be for you to return all the funds she paid you.
While it may feel awkward, do yourself and the person you are helping a favor and keep good time records and all receipts. And carry on with your good work.