Walnut Creek Elder Law Blog » Uncategorized

Elder Abuse – Criminal and Civil – Red Flags

mike — Wed, 14 Sep 2011 20:27:12 +0000

In California, civil and criminal Elder Abuse Laws pertain to persons 65 years of age or older. Under the criminal statutes, elder abuse can occur when someone causes the elder to suffer mentally or physically. Under the civil statutes, abuse can mean neglect, causing financial abuse, abandonment, and physical harm or mental suffering. In addition, under the civil statutes, elder abuse can mean deprivation of care by the custodian of goods or services that the elder needs to avoid mental suffering or pain.

There are red flags to be on the outlook for regarding possible elder abuse, which many of us have seen. One red flag could be that the older person is not given the opportunity to speak for herself. Another red flag could be that the care giver or family member expresses anger toward the elder. A painful red flag is the isolation socially, of the older person. If you see signs of elder abuse, you should report it.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for your particular situation.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

VA Aid & Attendance Pension Benefits w/o The Sale of Annuities

mike — Tue, 19 Jul 2011 16:24:36 +0000

The VA Aid & Attendance Pension Benefit is available for wartime veterans or their surviving spouses. For 2011, a single veteran can receive up to $1,644 per month, and $1,949 if married. The widowed spouse can receive up to $1,056 per month. This benefit is most helpful for payment of in home care, assisted living facility and board and care costs.

For qualification, the VA takes into account, among other things, income and assets. If the applicant’s income and assets are too high, he may not qualify. That is where planning by your elder law attorney, who is certified by the VA, comes in. In addition, when we plan for the VA Aid & Attendance Pension Benefit, we also plan for Medi-Cal benefits at the same time. Medi-Cal pays for nursing home costs after your Medicare days are used up. Nursing homes in our area can cost upwards of $7,500 or more per month. If you plan for VA alone, without taking into account the more stringent Medi-Cal rules at the same time, you may become eligible for VA but ineligible for Medi-Cal.

Beware of being asked to purchase an annuity to qualify for VA. We have been informed by clients and others that there are annuity salesmen out there, who are also usually not certified by the VA, who will ask you to purchase an annuity for VA qualification. I understand that they usually do not tell you about the annuity at first. The purpose for the sale of an annuity, from a legal perspective, is at best unclear, and is generally viewed by the elder law legal community as unnecessary. Your elder law attorney can best help you with asset protection and planning, within the Medi-Cal and VA regulations, without the sale of annuities. Medi-Cal also has stringent requirements about annuities, which could make the Medi-Cal applicant either ineligible for Medi-Cal, or require him to pay more than necessary in the share of cost, which money goes from the applicant to the nursing home. We receive calls from individuals, and their families, who are quite angry that they have purchased an annuity for VA qualification, angry that they do not understand what the purpose of the annuity was, and would like to know how to reverse the process. Your elder law attorney, who is certified by the VA, can best help you with long term care planning, asset protection, VA and Medi-Cal qualification, and estate planning at the same time, legitimately and within the regulations.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney, who is certified by the VA, for professional advice.

Swimming With Grandchildren Without A Pool!

mike — Mon, 11 Jul 2011 16:58:42 +0000

I can’t help myself talking about our grandkids, at least one more time. My wife and I have two grandchildren, a boy 4 and a girl 2 ½. Both kids “stayed over” a couple of weekends ago. They arrived on Saturday morning with their little suitcases packed, which included their swimsuits. They wanted to swim with us in our community pool, but that plan was thwarted when we found out the pool pump was broken.

We felt horrible, and did not have a little pool for them. What we did have was a large plastic storage container, which held about 20 gallons of water. We also had large and small “Super Soaker” squirt guns, and Grandma had all sizes of plastic measuring cups. The kids put their swim suits on, filled the storage container with water, and climbed inside the container! They played with the hose, the squirt guns and the measuring cups for hours. Every once in awhile they would climb out of the container and lie on their towels in the sun to dry off. When they were dry they would climb back into the container and have more fun! I guess we don’t really need a pool, but I am off to Target to find something for them to use at our house.

There is probably no legal point to all of this, (other than to include your grandchildren in your estate plans) but I just had to share with you how fun it is being grandparents!

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

My Grandchildren are Too Cute!

mike — Wed, 06 Jul 2011 17:16:37 +0000

When I was younger and people started to talk about their grandchildren, I would practically plug my ears. Now that we have two grandchildren, ages 4 and 2, I am the one who can’t stop talking about them.

So, since I can’t stop myself, I must tell you a story about my granddaughter, Edie. She will be 3 this coming September. Grandma and I were watching both grandchildren a few weekends ago, and Edie was on my lap. I was opening a package that came in the mail, and when I opened the package, bubble wrap came out. My granddaughter said to me, “BaPa, cut a small piece for me.” So I cut a small piece for her and said, “Like this?” She said, “Yes, not pop it! Pop it! Pop It!” I started to pop the little bubbles for her, and she couldn’t stop laughing. It made me laugh that she was laughting, and I was also laughing at how this little girl could give me orders which I would immediately comply with.

I felt like my life was made at that moment. My granddaughter and I were both happy and laughing. I was also astonished that this little girl at age 2 1/2 would know about these things and could tell me what to do like that! I just can’t imagine that other grandchildren are that smart. (ha ha)

I hope you didn’t plug your ears. Thank you, BaPa, Mike Young.

This information is not to be taken as legal advice, and you are encouraged to see an elder law attorney for professional advice.

Where’s Your Cane Dad?

mike — Mon, 21 Mar 2011 22:37:48 +0000

When my elderly father would come to visit me, I would ask, “Where’s your cane Dad?” He would say that he didn’t need it, and that he was trying to build up his strength. He needed to use his cane though, because he would hang onto me or my brother, or hang onto whatever was close to him, like a lampost, etc. One evening on a weeknight at about 3:00 a.m., my father called me to tell me that he had fallen. It was bad, in that he cut his head, and we had to take him to the emergency room. He was badly shaken, and it took a long time for him to recuperate.

Injuries from falls from older people is a real concern. Statistics show that once an older person has fallen, they are likely to fall again, unless precautions are taken. Injuries are the fifth leading cause of death among older people, and 80% of those injuries are the result of falling. For older women, falls can more often cause bone fractures because of osteoporosis. My older clients remind me of my parents, and I encourage them to use their canes or walkers.

We often receive calls from the loved ones of older persons who have fallen. Many times it is a wake up call to get things in order, such as wills, trusts and other estate planning documents. The concern for planning for long term care for the older client becomes more critical.

Veterans Benefits For The Surviving Spouse

mike — Fri, 18 Jun 2010 18:16:30 +0000

The surviving spouse of a wartime Veteran may be eligible for the VA Aid and Attendance Pension Benefit. This benefit can help pay the costs of in home care, board and care and assisted living facilities for the surviving spouse. We must be able to show that the surviving spouse had been married to the Veteran for at least one year, or had children by the Veteran if married less than one year.

The surviving spouse is not eligible if he/she has remarried. Also, the surviving spouse must have been living with the Veteran at the time of the Veteran’s death, unless they were separated because of medical or military reasons. The Veteran must have a discharge from the military that is other than dishonorable. The pension rate for the surviving spouse may be as much as $1,056 per month, or $12,681 per year.

Each VA claim is different and unique, and there are never any guarantees that any claim will be granted by the VA. When we plan for the VA Aid and Attendance Pension benefit, we also plan for Medi-Cal at the same time. Both benefits have different qualification rules, which must be coordinated.

This blog is general in nature, is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young, who also advises on Medi-Cal qualification, asset protection, nursing homes and the VA Aid & Attendance qualification, serves Contra Costa and Alameda Counties in CA, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

Update The Language In Your Estate Planning Documents for Asset Protection

mike — Tue, 15 Jun 2010 22:15:20 +0000

The language used in estate planning documents for asset protection and government benefits planning for the older client, is very different from the language used in regular estate planning documents. In fact, I would say that 90% or more of all revocable living trusts and financial durable powers of attorney do not contain the right language, and are defective for this type of planning, if the maker or one of the makers of the documents loses mental capacity.

As an example, if we are going to protect the home from a Medi-Cal lien, because of an imminent stay in a nursing home, we may want to transfer the ill spouse’s interest in the home to the well spouse. Or, in the case of a single person, we may want to transfer that person’s interest in the home to a child. Or, we may want to liquidate the cash in value of a life insurance policy, and gift that interest to a spouse or a child.

If the person who owns the interest has lost capacity to make the transfer, the language in the trust and financial durable power of attorney, in most cases, does not allow for this type of transfer. As a result, we may have to go to court to obtain an order to reform the estate planning documents. This process can be costly.

The alternative is to do pre-planning, and have the revocable living trust and financial durable powers of attorney updated by an elder law lawyer, who practices in the areas of Medi-Cal planning, VA planning and nursing home planning. By doing pre-planning, and including the correct language in these documents, we can save costs and headaches later on.

This blog is for informational purposes only and is not legal advice. You should consult an elder law, asset protection and government benefits attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Mr. Young advises clients regarding Medi-Cal, nursing homes, asset protection, the VA Aid and attendance pension benefit, and long term care planning.

Plan For Medi-Cal And VA At The Same Time

mike — Tue, 15 Jun 2010 15:36:56 +0000

When we plan for the VA Aid and Attendance Pension benefit, we plan for Medi-Cal at the same time. Medi-Cal and the VA benefit are both asset and income based programs. Medi-Cal pays for the costs of skilled nursing facilities, minus the share of cost paid by the recipient. The VA benefit can help pay for the costs of assisted living facilities, board and care facilities, and in home care costs. Under both programs, if the applicant is “over assets”, they can spend down, gift some of their assets away, or use other legitimate asset protection techniques to obtain qualification.

The VA Aid and Attendance Pension Benefit program does not have a “look back” penalty period. The applicant could give away $50,000 for instance, today, and theoretically be eligible for the VA benefit tomorrow. If the same applicant then went to apply for Medi-Cal, after having gifted the $50,000, there would be an eight month penalty period. Divide $50,000 by $5,698 (penalty divisor) and you have 8.775 or, rounded down, eight months of ineligibility. As a result, the applicant would not be eligible for Medi-Cal for eight months.

There are legitimate gifting and planning techniques which your elder law attorney can show you to create fewer months of ineligibiity for Medi-Cal. Remember that Medi-Cal pays for skilled nursing, which is much more expensive than assisted living facilities. Planning for Medi-Cal and the VA Aid and Attendance Pension benefit at the same time, is good planning. Your Medi-Cal, elder law attorney can help you with this.

Written Michael J. Young, elder law and asset protection attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young serves Contra Costa County and Alameda County, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. Medi-Cal Attorney Contra Costa.

Which one do you like better?

mike — Mon, 14 Jun 2010 23:41:26 +0000

As an elder law attorney, I like to ask my clients to tell me stories about their lives. One of the funniest stories was told to me by a lady in her 90’s. She told me that on one Saturday morning at about 6:00 a.m., she and her husband could hear her two boys, who were about three or four years old, whispering to each other at the foot of their parents’ bed. Looking at their parents in bed, one child asked the other, “Which one do you like better?” I thought this was hilarious.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young, who also advises on Medi-Cal qualification, asset protection and VA Aid & Attendance qualification, serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

Rosie the Riveter

mike — Mon, 14 Jun 2010 23:19:43 +0000

I always ask my clients if they are veterans, so that we can talk about planning for the VA Aid & Attendance Pension Benefit. An older couple came to see me about Medi-Cal planning, and the husband told me that he was in the Navy during WWII, stationed in San Diego. The wife told me that she is not a veteran, but she asked me if I have ever heard of Rosie the Riveter. I said yes, of course, and she said that was her! She admitted though that she was not the famous Rosie on the posters. She told me that she worked for an aircraft company in Southern California during WWII, and worked her way up to an inspector of electrical wiring for military aircraft.

The husband could of course be eligible for the Aid and Attendance Pension Benefit. In addition, if he were to pass away, his wife could be eligible for this benefit, as the surviving spouse of a war time veteran.

This blog is for informational purposes only and is not legal advice. You should consult an elder law attorney for your particular case, and before you proceed with any planning.

Written Michael J. Young, lawyoung1@gmail.com, elder law attorney in Walnut Creek, CA. www.WalnutCreekElderLaw.com mike@WalnutCreekElderLaw.com. 1931 San Miguel Dr., Suite 220, Walnut Creek, CA 94596. 925-256-0298. Mr. Young, who also advises on Medi-Cal qualification and asset protection, serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.