The same-sex partner of a man who died following an on-the-job accident is not entitled to the Workers’ Compensation death benefit a surviving spouse in a traditional marriage would receive, a divided upstate appeals panel ruled yesterday.
The civil union that John R. Langan and the late Neal Conrad Spicehandler entered into in Vermont in 2000 does not make Mr. Langan eligible for the death benefit as a surviving spouse under New York’s Workers’ Compensation Law §16, the court determined in Matter of Langan v. State Farm Fire & Casualty. In a 4-1 ruling, the court decided that Mr. Langan has no better claim to the death benefit than the male registered domestic partner in Matter of Valentine v. American Airlines, (2005), who sought the death benefit after his partner was killed in a 2001 plan crash in New York City.
Neither civil unions nor registered domestic partnerships are recognized as marriages under the Workers’ Compensation Law, Justice Anthony T. Kane wrote for the Third Department panel. A “legal spouse” is the “husband or wife of lawful marriage” for purposes of the statute, Justice Kane wrote, citing Valentine.
The majority ruled that its holding was also consistent with the state Court of Appeals’ landmark ruling in Hernandez v. Robles, (2006), in which the Court ruled 4-2 that New York’s Domestic Relations Law implicitly limits marriage to heterosexual couples.
The Court of Appeals has also long recognized that the Workers’ Compensation system is designed to protect the family–“husband, wife and children,” as the court put it yesterday–should spouses be injured or killed while on the job, the Third Department noted.
“The Court of Appeals has already determined that the Legislature’s decision to limit marriage to opposite-sex couples is rationally related to this legitimate interest and withstands rational basis scrutiny,” Justice Kane wrote. “The decision to extend workers’ compensation death benefits to a whole new class of beneficiaries, i.e., survivors of same-sex unions, is a decision to be made by the Legislature after appropriate inquiry into the societal obligation to provide such benefits and the financial impact of such a decision.”
The majority also ruled that comity does not bind New York state to extend Workers’ Compensation death benefits to partners in civil unions, as Vermont does for its same-sex-couple residents. “This doctrine is not a mandate to adhere to another state’s laws, but an expression of one state’s voluntary choice to defer to another state’s policy,” the court held.
The lone dissenter, Justice Robert S. Rose, found Mr. Langan’s comity argument more persuasive. Justice Rose wrote that the plaintiff is not asking for the death benefit because Vermont would confer them on him were he a resident of that state, but “only to recognize the legal status of spouse afforded to him by Vermont, as a matter of comity.”
“Once that status is recognized, New York law provides the legal incidents to which claimant would be entitled, including workers’ compensation death benefits,” the dissenter held.
Yesterday’s ruling affirmed the denial of death benefits to Mr. Langan by a Workers’ Compensation Law judge and the Workers’ Compensation Board. Mr. Langan’s appeal went directly to the Appellate Division.
Had Mr. Langan and Mr. Spicehandler been in a traditional marriage, Mr. Langan would have been eligible for a death benefit totaling two years’ worth of benefits is provided, according to the state Workers’ Compensation Board.
Mr. Spicehandler lived on Long Island with Mr. Langan and the two men had been in a relationship for 14 years before the entered into a civil union. Mr. Spicehandler was struck by a hit-and-run driver in midtown Manhattan and severely injured his leg in February 2002. He died of a blood clot two days later, following surgery.
The prospect of New York’s Legislature legalizing same-sex marriages or extending Workers’ Compensation benefis to domestic partners or couples in civil unions is considered dim as long as Republicans maintain their majority in the state Senate.
By an 85-61 vote, the Democrat-dominated state Assembly approved a bill sent by Governor Eliot Spitzer to authorize same-sex marriages on June 19. However, Senate Republican Majority Leader Joseph Burn, R-Brunswick, has said repeatedly his GOP members have no interest in taking up the bill or legalizing same-sex marriages.
The Third Department panel took 3 ½ months after hearing oral arguments to hand down its ruling in Langan. That is about twice as long as the court normally takes to decide cases and generally indicates disagreements among members of the panel over the ruling.
This was not the first time Mr. Langan has lost before the Appellate Division in a case concerning his late partner. In Langan v. St. Vincent’s Hospital (2005), a Second Department panel ruled 3-2 that same-sex partners cannot pursue a wrongful death action in New York. Mr. Langan had sought to sue St. Vincent’s Hospital for alleged maltreatment of the injuries of Mr. Spicehandler, a Massapequa attorney. The Court of Appeals dismissed an appeal of that ruling in 2006.
As this recent case proves, Gay and Lesbian couples and their families do not have the same legal rights as traditional married couples making it even more imperative to establish an estate plan. Without an estate plan, critical decisions may be left to a system that may exhibit legal prejudice and involve bloodline relatives that you may not want involved. The attorneys at Davidow, Davidow, Siegel & Stern are well versed in this area. If you require detailed information, please request a copy of our special report entitled, “Protecting the rights of non-traditional couples in the traditional world”.
Source: NY Law Journal
Tuesday, January 8, 2008
Thursday, November 29, 2007
Buffet Testifies Against Estate Tax Repeal Which Appears Dead
Billionaire Warren Buffett urged Congress to preserve the estate tax, saying that plans to repeal it would benefit a handful of the richest American families and turn the country into a "plutocracy."
Buffett, the chairman of Berkshire Hathaway and the second-richest man in America after Bill Gates, according to Forbes magazine, testified before the Senate Finance Committee on Nov. 14, 2007. He told the panel, which is exploring ways to replace the ever-changing rules of the current estate tax system, that advocates of repeal are "dead wrong" to call the tax a "death tax."
Buffett said it would be more appropriate to call it a "death present" because heirs get to calculate their capital gains on inherited assets based on the price when they inherited them rather than when the decedent originally bought them.
Buffett noted that so few Americans are subject to the estate tax that "you would have to be at 200 funerals to attend one where the decedent paid the tax."
"Dynastic wealth, the enemy of a meritocracy, is on the rise," he went on. "Equality of opportunity has been on the decline. . . . We ought to do more for [low-income Americans] and take more out of the hides of people like me."
Those who support repeal claim that the estate tax sometimes forces the heirs of family businesses and farms to sell pieces of the business just to pay the tax bill. Testifying in favor of repeal was Dean Rhoads, a rancher and state senator from Nevada, who said when his in-laws died, the family had to sell land to pay the estate taxes and are now paying $18,000 in taxes, plus interest, every year. "We have had to borrow money to make these payments," Rhoads said.
Currently, only estates worth more than $2 million are taxed by the federal government. The threshold is scheduled to rise to $3.5 million in 2009. For the year 2010, estates will be entirely free from federal taxation. However, the law that includes this provision expires at the end of 2010. Thus, unless Congress acts in the interim, the estate tax exemption will then revert to $1 million.
Buffett said he would raise the amount of estate assets exempt from the estate tax to $4 million. He also said he might include an exemption for small family-owned businesses.
Senators on both sides of the aisle agreed that complete repeal of the estate tax is not in the cards now. "I think everyone in this room knows we're not going to repeal the estate tax. It's not going to happen in the foreseeable future," said Committee Chairman Max Baucus (D-MT).
"We can't get [repeal] done," said Sen. Jim Bunning (R-KY). "We ought to be able to come to a compromise."
Source: www.elderlawanswers.com
Buffett, the chairman of Berkshire Hathaway and the second-richest man in America after Bill Gates, according to Forbes magazine, testified before the Senate Finance Committee on Nov. 14, 2007. He told the panel, which is exploring ways to replace the ever-changing rules of the current estate tax system, that advocates of repeal are "dead wrong" to call the tax a "death tax."
Buffett said it would be more appropriate to call it a "death present" because heirs get to calculate their capital gains on inherited assets based on the price when they inherited them rather than when the decedent originally bought them.
Buffett noted that so few Americans are subject to the estate tax that "you would have to be at 200 funerals to attend one where the decedent paid the tax."
"Dynastic wealth, the enemy of a meritocracy, is on the rise," he went on. "Equality of opportunity has been on the decline. . . . We ought to do more for [low-income Americans] and take more out of the hides of people like me."
Those who support repeal claim that the estate tax sometimes forces the heirs of family businesses and farms to sell pieces of the business just to pay the tax bill. Testifying in favor of repeal was Dean Rhoads, a rancher and state senator from Nevada, who said when his in-laws died, the family had to sell land to pay the estate taxes and are now paying $18,000 in taxes, plus interest, every year. "We have had to borrow money to make these payments," Rhoads said.
Currently, only estates worth more than $2 million are taxed by the federal government. The threshold is scheduled to rise to $3.5 million in 2009. For the year 2010, estates will be entirely free from federal taxation. However, the law that includes this provision expires at the end of 2010. Thus, unless Congress acts in the interim, the estate tax exemption will then revert to $1 million.
Buffett said he would raise the amount of estate assets exempt from the estate tax to $4 million. He also said he might include an exemption for small family-owned businesses.
Senators on both sides of the aisle agreed that complete repeal of the estate tax is not in the cards now. "I think everyone in this room knows we're not going to repeal the estate tax. It's not going to happen in the foreseeable future," said Committee Chairman Max Baucus (D-MT).
"We can't get [repeal] done," said Sen. Jim Bunning (R-KY). "We ought to be able to come to a compromise."
Source: www.elderlawanswers.com
Friday, November 2, 2007
Transfer Penalty no longer applies for Lombardi Program!
On September 24, 2007, the New York Office of Health Insurance Programs issued a directive stating that the penalty period for gifts will no longer apply to applicants for the Lombardi program. "Effective immediately: if an individual applies for Medicaid coverage of home and community-based waiver services, the applicant is only required to provide documentation of his/her current resources. The individual is not subject to a transfer of assets look-back period nor is the individual subject to a transfer penalty period. Spousal impoverishment budgeting continues to apply to a waiver A/R who has a community spouse."
The Long Term Home Health Care Program (LTHHCP), also known as "The Lombardi Program" or "Nursing Home without Walls" provides eligible patients and their families with a popular alternative to institutional care. Based on an individualized plan of care, a comprehensive package of coordinated services is designed to meet the specific needs of eligible patients in their homes. The program serves chronically ill and disabled persons over the age of 18 who have ongoing health care needs. The hallmark of this program is case management by a Registered Nurse. An interdisciplinary team of health care professionals provides assessments, visits and delivery of ongoing quality care in the home. Services may include but are not limited to Nursing Care; Physical, Occupational and Speech Therapy; Personal Care Aides; Transportation; PERS, etc.
The elimination of the penalty period for the Lombardi Medicaid program is a brand new development. In recommending transfers prior to application for the Lombardi program, there still remains the concern that a recipient of the Lombarid program may need nursing home care in the future. Gifts will be reviewed and possibly penalized for the nursing home applicant even though they were not considered in the Lombardi application. Therefore, prior to planning for and applying for the Lombardi program, legal advice from a certified elder law attorney should be sought.
The Long Term Home Health Care Program (LTHHCP), also known as "The Lombardi Program" or "Nursing Home without Walls" provides eligible patients and their families with a popular alternative to institutional care. Based on an individualized plan of care, a comprehensive package of coordinated services is designed to meet the specific needs of eligible patients in their homes. The program serves chronically ill and disabled persons over the age of 18 who have ongoing health care needs. The hallmark of this program is case management by a Registered Nurse. An interdisciplinary team of health care professionals provides assessments, visits and delivery of ongoing quality care in the home. Services may include but are not limited to Nursing Care; Physical, Occupational and Speech Therapy; Personal Care Aides; Transportation; PERS, etc.
The elimination of the penalty period for the Lombardi Medicaid program is a brand new development. In recommending transfers prior to application for the Lombardi program, there still remains the concern that a recipient of the Lombarid program may need nursing home care in the future. Gifts will be reviewed and possibly penalized for the nursing home applicant even though they were not considered in the Lombardi application. Therefore, prior to planning for and applying for the Lombardi program, legal advice from a certified elder law attorney should be sought.
Friday, October 26, 2007
Voters Want Long Term Care included in Presidential Candidates' Healthcare Proposals
Genworth Financial, Inc. convened a national symposium of noted experts from the healthcare industry, seniors organizations, government and academia on Capitol Hill to discuss the future of long term care in America. It also released the results of a new poll on the importance of long term care in the 2008 elections and a new book on the future of long term care in America.
Representatives from organizations such as AARP, the American Association for Homes Services for the Aging (AAHSA), the American Health Care Association(AHCA), the Alzheimer’s Association and the National Alliance of Caregivers (NAC) participated in an exchange of ideas and solutions aimed at addressing the looming crisis America faces amid rising long term care costs and a lack of sufficient planning at the national, state and individual levels.
“It is estimated that 60% of those over the age 65 will require a form of long term care at some point,” said Buck Stinson, president of Genworth Financial’s long term care insurance division. “With the first of the 78 million baby boomers turning 62 next year, we need to be both realistic and prepared for the healthcare demands many of these Americans will have, which is precisely why the discussion we’re having today is so important.”
According to the new bi-partisan national survey, nearly seven in ten Americans have not made any plans for their own, a spouse’s or another relative’s long term care needs. Yet, over half those surveyed have had a loved one who needed some form of long term care. The poll also found that close to 80 percent of the respondents want to see long term care included in the healthcare proposals offered by the presidential candidates. More than 80 percent of those surveyed also said that positions on long term care funding will be an important factor in deciding who to vote for in the 2008 election.
The polling also showed that Americans are willing to bear part of the responsibility to develop a national long term care program, whether through tax incentives for the purchase of private long term care insurance or through a universal healthcare initiative that include long term care coverage. Sixty percent of voters surveyed supported new taxes or payroll deductions to subsidize a long term care program. Sixty-eight percent of those who supported new taxes or payroll deductions also indicated a willingness to pay between $25 monthly and upwards of $50 per month.
The release of a new publication, The Future of Long Term Care in America: Views and Recommendations by Prominent Experts, was a focal point of the symposium. The book’s purpose is to inform policy makers, academics, financial advisors and consumers about the challenges of long term care. It will be available on Amazon.com. It is comprised of ten chapters, each written by a different author such as AARP CEO, Bill Novelli, and former Congressional Budget Office Director, Douglas Holtz-Eakin. It covers a wide range of long term care issues including the role of technology in future care, Alzheimer’s disease, independent living, public funding for long term care programs, the growing demand and delivery (home-based and facility-based) of long term care services and other relevant topics. More information about the book, including a full list of chapters and their authors, can be found at Genworth.com.
Source: CNNMoney.com; 10/11/07
Representatives from organizations such as AARP, the American Association for Homes Services for the Aging (AAHSA), the American Health Care Association(AHCA), the Alzheimer’s Association and the National Alliance of Caregivers (NAC) participated in an exchange of ideas and solutions aimed at addressing the looming crisis America faces amid rising long term care costs and a lack of sufficient planning at the national, state and individual levels.
“It is estimated that 60% of those over the age 65 will require a form of long term care at some point,” said Buck Stinson, president of Genworth Financial’s long term care insurance division. “With the first of the 78 million baby boomers turning 62 next year, we need to be both realistic and prepared for the healthcare demands many of these Americans will have, which is precisely why the discussion we’re having today is so important.”
According to the new bi-partisan national survey, nearly seven in ten Americans have not made any plans for their own, a spouse’s or another relative’s long term care needs. Yet, over half those surveyed have had a loved one who needed some form of long term care. The poll also found that close to 80 percent of the respondents want to see long term care included in the healthcare proposals offered by the presidential candidates. More than 80 percent of those surveyed also said that positions on long term care funding will be an important factor in deciding who to vote for in the 2008 election.
The polling also showed that Americans are willing to bear part of the responsibility to develop a national long term care program, whether through tax incentives for the purchase of private long term care insurance or through a universal healthcare initiative that include long term care coverage. Sixty percent of voters surveyed supported new taxes or payroll deductions to subsidize a long term care program. Sixty-eight percent of those who supported new taxes or payroll deductions also indicated a willingness to pay between $25 monthly and upwards of $50 per month.
The release of a new publication, The Future of Long Term Care in America: Views and Recommendations by Prominent Experts, was a focal point of the symposium. The book’s purpose is to inform policy makers, academics, financial advisors and consumers about the challenges of long term care. It will be available on Amazon.com. It is comprised of ten chapters, each written by a different author such as AARP CEO, Bill Novelli, and former Congressional Budget Office Director, Douglas Holtz-Eakin. It covers a wide range of long term care issues including the role of technology in future care, Alzheimer’s disease, independent living, public funding for long term care programs, the growing demand and delivery (home-based and facility-based) of long term care services and other relevant topics. More information about the book, including a full list of chapters and their authors, can be found at Genworth.com.
Source: CNNMoney.com; 10/11/07
Tuesday, October 16, 2007
New Medicare Premium, Decuctible & Coinsurance Charges for 2008
The Centers for Medicare and Medicaid Services (CMS) has announced the new Medicare premiums, deductibles, and coinsurances. The standard Medicare Part B premium is increasing by 3.1 percent to $96.40 a month, the smallest increase since 2001.
The increase is lower than previously expected in part due to the correction of an accounting error. Money for certain hospice benefits had been inadvertently drawn from the Part B trust fund rather than the fund that pays hospital costs. In addition, the lower premium assumes that physicians will take a 10 percent cut in their reimbursement rates. It is expected that Congress will act to offset some of or all of that pay cut, meaning that future-year premiums will reflect the additional expense.
Here are all the new Medicare figures:
Part B premium: $96.40/month (was $93.50)
Part B deductible: $135 (was $131)
Part A deductible: $1,024 (was $992)
Co-payment for hospital stay days 61-90: $256/day (was $248)
Co-payment for hospital stay days 91 and beyond: $512/day (was $496)
Skilled nursing facility co-payment, days 21-100: $128/day (was $124)
As directed by the 2003 Medicare law, for the first time, higher income beneficiaries will pay higher Part B premiums. Following are the higher premium rates:
Individuals with annual incomes between $82,000 and $102,000 and married couples with annual incomes between $164,000 and $204,000 in 2008 will pay a monthly premium of $122.20.
Individuals with annual incomes between $102,000 and $153,000 and married couples with annual incomes between $204,000 and $306,000 in 2008 will pay a monthly premium of $160.90.
Individuals with annual incomes between $153,000 and $205,000 and married couples with annual incomes between $306,000 and $410,000 in 2008 will pay a monthly premium of $199.70.
Individuals with annual incomes of $205,000 or more and married couples with annual incomes of $410,000 or more in 2008 will pay a monthly premium of $238.40.
Rates differ for beneficiaries who are married but file a separate tax return from their spouse:
Those with incomes between $82,000 and $123,000 will pay a monthly premium of $199.70.
Those with incomes greater than $123,000 will pay a monthly premium of $238.40.
Source: www.elderlawanswers.com
The increase is lower than previously expected in part due to the correction of an accounting error. Money for certain hospice benefits had been inadvertently drawn from the Part B trust fund rather than the fund that pays hospital costs. In addition, the lower premium assumes that physicians will take a 10 percent cut in their reimbursement rates. It is expected that Congress will act to offset some of or all of that pay cut, meaning that future-year premiums will reflect the additional expense.
Here are all the new Medicare figures:
Part B premium: $96.40/month (was $93.50)
Part B deductible: $135 (was $131)
Part A deductible: $1,024 (was $992)
Co-payment for hospital stay days 61-90: $256/day (was $248)
Co-payment for hospital stay days 91 and beyond: $512/day (was $496)
Skilled nursing facility co-payment, days 21-100: $128/day (was $124)
As directed by the 2003 Medicare law, for the first time, higher income beneficiaries will pay higher Part B premiums. Following are the higher premium rates:
Individuals with annual incomes between $82,000 and $102,000 and married couples with annual incomes between $164,000 and $204,000 in 2008 will pay a monthly premium of $122.20.
Individuals with annual incomes between $102,000 and $153,000 and married couples with annual incomes between $204,000 and $306,000 in 2008 will pay a monthly premium of $160.90.
Individuals with annual incomes between $153,000 and $205,000 and married couples with annual incomes between $306,000 and $410,000 in 2008 will pay a monthly premium of $199.70.
Individuals with annual incomes of $205,000 or more and married couples with annual incomes of $410,000 or more in 2008 will pay a monthly premium of $238.40.
Rates differ for beneficiaries who are married but file a separate tax return from their spouse:
Those with incomes between $82,000 and $123,000 will pay a monthly premium of $199.70.
Those with incomes greater than $123,000 will pay a monthly premium of $238.40.
Source: www.elderlawanswers.com
Tuesday, September 18, 2007
Insurance Gaps & Unexpected Tragedies Leave Many Facing Impossible Choices
Many Americans retire early prior to reaching age 65 and receiving Medicare coverage. If they do not plan carefully, they will not have health care coverage before they can be covered by Medicare.
Many Americans retire early prior to reaching age 65 and receiving Medicare coverage. If they do not plan carefully, they will not have health care coverage before they can be covered by Medicare. Others become disabled, but have to wait 25 months prior to receiving Medicare coverage. Others are simply the victims of bad luck.
Consider the following:
A 59-year-old man falls from a second-story balcony and sustains severe injuries including brain damage. Unfortunately, he is without health insurance because he decided to retire before he was 65 in order to care for his wife who is stricken with Alzheimer's. How will he pay for his various medical bills?
A 48-year-old woman with two children suffers a stroke. Her employer's health care insurance includes an annual $50,000 benefit cap. How will she pay for her hospital stay and doctors' bills?
A 23-year-old woman is stricken with a brain aneurysm. She had just changed jobs following a cross-country move. Her recent job change has left her without the necessary insurance to pay for this care.
Many Americans suffer "gaps" in their health insurance coverage. A hospital stay or medical care for cancer or other similar diseases wreaks financial havoc for these families. Unfortunately, many learn too late that they have no health insurance, inadequate health insurance or very low caps on their insurance benefits. Some of them mistakenly think that Medicare will cover them if they are over the age of 65.
Most of these individuals have been self-supportive and typically paid into either a private health care insurance program or have been involved in an employer-sponsored plan. Their needs are not typically classified as long-term care needs. Often times, hospital/rehabilitation stays exceed $20,000 per month. According to the U.S. Agency for Healthcare Research and Quality, after adjusting for inflation, the average hospital charge increased by 24 percent from $13,900 in 1997 to $17,300 in 2002. Many of these individuals will be able to return to their homes and even to their jobs. Sadly, their lack of health care coverage or caps on benefits leave them in a near bankrupt position. In some cases, they may even be forced to end long-term marriages due to the financial hardship and strain placed on their families. These cases also adversely affect the dependent children of those without coverage.
These cases involve very common people with very uncommon injuries or illnesses. The result will shield companies from liability and shift the cost of care to the state Medicaid programs.
Elder law attorneys regularly recommend the purchase of health insurance for individuals who are considering early retirement or who are not covered by a group health care insurance policy. Many people do not plan ahead and purchase private disability insurance or exercise their COBRA rights to continue their employer sponsored health care insurance. Only if they suffer from an unexpected illness or are involved in an accident do they realize they were uninsured or underinsured.
A recently released U.S. Census Bureau report shows the number of uninsured people rose from 44.8 million in 2005 to 47 million in 2006. A report last year by the Robert Wood Foundation shows one in six adults between the ages of 50-64 are uninsured.
Elder law attorneys assist individuals in identifying current or future insurance coverage gaps. Elder law attorneys guide older adults, people with disabilities and families through an assessment of resources, needs and goals, so that they can cope with unexpected tragedies or plan ahead to access health care whenever it is needed.
For more information about elder law attorneys and the National Academy of Elder Law Attorneys, visit www.naela.org
Source: NAELA, Eye on Elder Issues, September 2007, Vol. 4, Issue 4.
Many Americans retire early prior to reaching age 65 and receiving Medicare coverage. If they do not plan carefully, they will not have health care coverage before they can be covered by Medicare. Others become disabled, but have to wait 25 months prior to receiving Medicare coverage. Others are simply the victims of bad luck.
Consider the following:
A 59-year-old man falls from a second-story balcony and sustains severe injuries including brain damage. Unfortunately, he is without health insurance because he decided to retire before he was 65 in order to care for his wife who is stricken with Alzheimer's. How will he pay for his various medical bills?
A 48-year-old woman with two children suffers a stroke. Her employer's health care insurance includes an annual $50,000 benefit cap. How will she pay for her hospital stay and doctors' bills?
A 23-year-old woman is stricken with a brain aneurysm. She had just changed jobs following a cross-country move. Her recent job change has left her without the necessary insurance to pay for this care.
Many Americans suffer "gaps" in their health insurance coverage. A hospital stay or medical care for cancer or other similar diseases wreaks financial havoc for these families. Unfortunately, many learn too late that they have no health insurance, inadequate health insurance or very low caps on their insurance benefits. Some of them mistakenly think that Medicare will cover them if they are over the age of 65.
Most of these individuals have been self-supportive and typically paid into either a private health care insurance program or have been involved in an employer-sponsored plan. Their needs are not typically classified as long-term care needs. Often times, hospital/rehabilitation stays exceed $20,000 per month. According to the U.S. Agency for Healthcare Research and Quality, after adjusting for inflation, the average hospital charge increased by 24 percent from $13,900 in 1997 to $17,300 in 2002. Many of these individuals will be able to return to their homes and even to their jobs. Sadly, their lack of health care coverage or caps on benefits leave them in a near bankrupt position. In some cases, they may even be forced to end long-term marriages due to the financial hardship and strain placed on their families. These cases also adversely affect the dependent children of those without coverage.
These cases involve very common people with very uncommon injuries or illnesses. The result will shield companies from liability and shift the cost of care to the state Medicaid programs.
Elder law attorneys regularly recommend the purchase of health insurance for individuals who are considering early retirement or who are not covered by a group health care insurance policy. Many people do not plan ahead and purchase private disability insurance or exercise their COBRA rights to continue their employer sponsored health care insurance. Only if they suffer from an unexpected illness or are involved in an accident do they realize they were uninsured or underinsured.
A recently released U.S. Census Bureau report shows the number of uninsured people rose from 44.8 million in 2005 to 47 million in 2006. A report last year by the Robert Wood Foundation shows one in six adults between the ages of 50-64 are uninsured.
Elder law attorneys assist individuals in identifying current or future insurance coverage gaps. Elder law attorneys guide older adults, people with disabilities and families through an assessment of resources, needs and goals, so that they can cope with unexpected tragedies or plan ahead to access health care whenever it is needed.
For more information about elder law attorneys and the National Academy of Elder Law Attorneys, visit www.naela.org
Source: NAELA, Eye on Elder Issues, September 2007, Vol. 4, Issue 4.
Friday, September 7, 2007
Providing for Children with Disabilities
One of the major concerns for parents with children with disabilities is how to provide for their financial future. Here are some legal tips:
Buy enough life insurance. A parent is irreplaceable, but someone will have to fill in. In all likelihood, that person or family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, it can be made large enough through life insurance proceeds. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low.
Set up a trust. Any funds left for a disabled child, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a disability jeopardizes public benefits. Many people with disabilities cannot manage funds – especially large amounts. Some families disinherit disabled children, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for siblings. The best approach is a trust fund set aside for the disabled child.
Will/appointment of guardian. While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child is disabled. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The parents need to make these determinations while they can. The will is the vehicle for the appointment of a guardian.
An adult child may also require a guardian when the parent can no longer serve in this role (whether officially appointed or not). It will probably not be legally possible to officially appoint a successor guardian. So, it may make sense to begin making the transition to a new guardian while the parent is able to assist in the process. This can be done in the form of a co-guardianship, or passing the baton to a successor guardian.
Care plan. All parents caring for disabled children should write down what any successor caregiver would need to know about the child and what the parent’s wishes are for his or her care. For example, should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information. The memo or letter can be kept in the attorney’s files with the parent’s estate plan.
Coordination with other family members. Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a disability. If a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may like to leave to that child through the trust.
Source: www.elderlawanswers.com; 9/6/07
Buy enough life insurance. A parent is irreplaceable, but someone will have to fill in. In all likelihood, that person or family will have to pay for at least some services the parent or parents had provided when able. If the estate is not large enough for this purpose, it can be made large enough through life insurance proceeds. Premiums for second-to-die insurance (which pays off only when the second of two parents passes away) can be surprisingly low.
Set up a trust. Any funds left for a disabled child, whether from an estate or the proceeds of a life insurance policy, should be held in trust for his or her benefit. Leaving money for anyone with a disability jeopardizes public benefits. Many people with disabilities cannot manage funds – especially large amounts. Some families disinherit disabled children, relying on their siblings to care for them. This approach is fraught with potential problems. Siblings can be sued, get divorced, disagree on their responsibilities, or run off with the funds. It can also cause tax problems for siblings. The best approach is a trust fund set aside for the disabled child.
Will/appointment of guardian. While a will and the appointment of a guardian is important for anyone with minor children, it is doubly so if the child is disabled. Finding the right guardian can be difficult. In some cases, the care needs of the child may be so demanding that he or she will need a different guardian from his or her siblings. The parents need to make these determinations while they can. The will is the vehicle for the appointment of a guardian.
An adult child may also require a guardian when the parent can no longer serve in this role (whether officially appointed or not). It will probably not be legally possible to officially appoint a successor guardian. So, it may make sense to begin making the transition to a new guardian while the parent is able to assist in the process. This can be done in the form of a co-guardianship, or passing the baton to a successor guardian.
Care plan. All parents caring for disabled children should write down what any successor caregiver would need to know about the child and what the parent’s wishes are for his or her care. For example, should the child be in a group home, live with a parent, be on his or her own? Usually, the parent knows best, but needs to pass on the information. The memo or letter can be kept in the attorney’s files with the parent’s estate plan.
Coordination with other family members. Even a carefully developed plan can be sabotaged by a well-meaning relative who leaves money directly to the child with a disability. If a trust is created for the benefit of the child, grandparents and other family members should be told about it so that they can direct any bequest they may like to leave to that child through the trust.
Source: www.elderlawanswers.com; 9/6/07
Subscribe to:
Posts (Atom)