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Davidow, Davidow, Siegel & Stern, LLP
Long Island's Elder Law, Special Needs & Estate Planning Firm

Monday, October 25, 2004

Frequently Asked Questions

What is Elder Law? Elder Law is an area of the law that deals primarily with planning for incapacity. Many documents used in Estate Planning overlap with Elder Law planning such as Powers of Attorney, Health Care Proxies and Living wills.

Do I need a power of attorney and a health care proxy? A durable power of attorney is a document that allows you to appoint one or more persons to make your business and financial decisions. Powers of Attorney drafted by experience Elder Law attorneys generally provide enhanced gift giving provisions to allow your agent to use the Power of Attorney for Medicaid planning to protect your assets if you are unable to do so. A Health Care proxy is a document that allows you to appoint someone to make your health care decisions if you are unable to convey your wishes. The form should cover artificial nutrition and hydration. It is important that you discuss your healthcare wishes. If you have a properly drafted durable Power of Attorney and Health Care Proxy in place, there is generally no need for an expensive guardianship proceeding if you become incapacitated.

What is a Living Will? While a Health Care Proxy is the appropriate document used to make health care decisions in New York, for persons who travel or snowbird, the Living Will is an alternative document used in other states. Essentially, the Living Will provides more detailed information about what procedures you want or do not want if you have a terminal condition where you are expected to pass away shortly. The language in the Living Will can also be used as clear and convincing evidence of your wishes in a new York court in the event your Health Care Proxy agent's decisions are challenged.

Monday, October 4, 2004

Definition of "Homebound" Clarified

Many are covered by Medicare for home health services. To receive such services, each beneficiary must: 1. Require skilled nursing care on a periodic basis, physical or speech therapy or need to maintain occupational services after skilled nursing or therapy has stopped; 2. Be under the care plan of a physician; 3. Receive services from a Medicare certified home health agency; and 4. Be confined to the home("homebound"). 42 U.S.C. Sections 1395f(a) and 1395n(a).

Section 507 of the Medicare, Medicaid and SHIP Benefits Improvement Act of 2000 (BIPA) has recently clarified that certain absences from the home by a beneficiary receiving Medicare home health care benefits are permissible. Moreover, beneficiaries may continue to receive such services when they need to leave the home, specifically for absences associated with the need for "therapeutic, psychosocial, or medical treatment in an adult daycare program that is lecensed and certified by a State, or accredited, to furnish adult day-care services in the State.

BIPA has also allowed for the attendance of religious services without disqualifying the person from Medicare home health care. In fact, BIPA has provided that an absence from home resulting from the attendance of a religious service "shall be deemed to be an absence of infrequent or short duration" thereby classifying the person as homebound to receive continued Medicare home health benefits.

[HCFA has provided "Q & As" to offer guidance to beneficiaries and professionals associated with Medicare home health services. The "Q & As" address the definition of "homebound" and clarify definitions of therpeutic services, psychosocial services, the specifics regarding state licensing and certification.] The Q & A's are available on the websites of HCFA and Medicare at www.hcfa.gov and www.medicare.gov.
Source: The National Senior Citizens Law Center in the Washington Weekly - May 2, 2001. Volume XXVII No. 21.