Walnut Creek Elder Law Blog

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.

We do Alzheimer’s planning in our lawfirm. This type of long term care planning includes, in part, the preparation of estate planning documents. These specialized documents contain required, updated language for asset protection and government benefits planning regarding Medi-Cal and the VA Aid and Attendance Improved Pension Benefit. Part of the planning may also include asset protection of the home and monetary assets.  

However, a big part of Alzheimer’s planning involves working with the family of the loved one who is afflicted with this disease. Alzheimer’s disease can last many years, and our relationship with the families we represent can be very long. As an example, my mother in law, who has Alzheimer’s disease, and who turns 90 next month, has been in a board and care facility for the last 10 years. Other than the disease, she is fairly healthy for a 90 year old.  She does not recognize her three “girls”, but she is being well cared for.  

Currently, there is no cure for Alzheimer’s, but there are treatments and services that will make life more bearable for the Alzheimer’s patient, and his or her family.  We offer  support for our clients and their families, regarding resources for care as part of the  long term care planning. We also encourage our clients and their families to become knowledgeable about the disease. For additional information regarding Alzheimer’s planning, please feel free to contact our office.

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.

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.

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.

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

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.

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.

It is highly recommended for the older person, that their estate planning documents be put in place as early as possible, in order to help guard against elder financial abuse. It is when the older person begins to show signs of a loss of mental capacity, that financial predators step in to take advantage of the older person. We have been seeing more and more of this lately, possibly because of a downturn in the economy.  

Older persons should consider preparing their estate plans right away, especially for instance, if there are beginning signs of dementia, a diagnosis of Parkinson’s disease or cancer, or if the older person has fallen. You will be able to pick who you know and trust as your health care agent and agent under your financial durable power of attorney while you still have good mental capacity.

If you are uncomfortable with appointing family members for these rolls, consider appointing a professional fiduciary. California has a rigid licensing program for professional fiduciaries, and they can be used in these positions in order to avoid financial abuse. Professionial fiduciaries are able to assist early on with bill paying and money management.

Unfortunately, the highest percentage of financial abuse and exploitation of the older person, involves the elder’s family members. Many times it is a child who has been dependent for support on the older parent. This child is usually unemployable, in financial straights, won’t work and many times has substance abuse problems. Many times they will badger their parent into giving them money. The parent gives in, just to get them off of his or her back. I have seen children who are completely exasperated that their parents are living so long! The children want their inheritance now, and don’t see why they should have to wait!

Other signs of elder financial abuse can include large bank withdrawals that the older person cannot explain, or a new friend or housekeeper gaining access to bank accounts. Another sign of problems is that bills are not being paid.

When the estate planning documents are being prepared, also consider asset protection and government benefits planning language to be included in the various documents. If the older person loses capacity, the asset protection plan can still be implemented.

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.

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

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.

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.

Most estate planning documents are prepared for what happens when we die. They are not prepared for what happens if we don’t die. With regard to the trust, if one spouse dies, for instance, everything goes to the other spouse. When the second spouse dies, everything goes to the children. During the lives of the spouses, all assets stay in the trust. If any gifting is allowed, it is not to exceed $13,000 per year per child. If there is no trust, the financial durable power of attorney will usually not provide for any gifting or asset protection.

But what if we want to do Medi-Cal or VA Aid & Attendance Benefit planning, and the makers of the trust or the makers of the financial durable powers of attorney have lost their mental capacities. For this planning, we at times will transfer assets, including the home,  from the ill spouse to the well spouse. We might also make transfers of various assets from parents to the children or to other loved ones.  The language to do this type of planning, 99% of the time, is not included in the typical estate planning documents. If the makers of the documents have lost their mental capacities, we cannot do this planning, and may have to go to court to reform the documents. As a result, long term care planning should include updating the estate planning documents to include government planning and asset protection language.

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 serves Contra Costa and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc.

When choosing an assisted living facility for a loved one who suffers from dementia, certain things should be taken into account regarding the facility. More and more assisted living facilities can now accommodate residents with various levels of dementia. Some facilities have separate wings or dementia units. I have visited many assisted living facilities, and have many clients with loved ones in assisted living facilities. In addition, I have made personal observations about the quality of care for persons with dementia in these facilities.

Music: My wife’s mother, who is 89, has advanced Alzheimers disease, and has been in an assisted living facility for a number of years. Although she does not seem to recognize her children, she does respond very positively to music. When music is played for her, or if someone performs or sings for her, her face lights up. She smiles, and tries to sing. I have noticed this for many residents with dementia, when I have played jazz piano for them in various facilities. Also, on researching the subject, it seems that music is processed and understood through a different part of the brain, usually with positive results.   As a result, find out if the facility you are interested in arranges for music to be played or performed for the residents on a regular basis.

Religious Services: Another item to take into account, is whether the facility is consistent with your religious beliefs. If the resident and family are religious, it will be important for them to have the facility provide religious services for their loved one during all phases of dementia. When my father, who was Catholic, was in an assisted living facility,  I know that he cherished receiving communion every week.  

Behavior: Find out whether the facility will be able to accommodate your loved one during all stages of the disease process. Plan for the future, as the disease may progress and become worse. Ask the facility what behaviors would trigger them to say that they can no longer accommodate your loved one. Also, ask how they would handle the behavior of your loved one if he or she becomes aggressive, loud, or acts out. You will find out more if you are very specific.  

 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.

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.

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.

The California Welfare and Institutions Code Section 15610.07 defines elder abuse as follows:

“Abuse of an elder or a dependent adult” means either of the following:

(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

(b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

In addition, the California Penal Code, Section 368 provides for criminal penalties for elder abuse, against someone who willfully causes or permits an elder to suffer, or inflicts unjustifiable physical pain or mental suffering on the older person.

Examples of elder abuse could include physical injury, broken bones, unusual bruises and, bedsores. In addition, social isolation, abandonment and financial abuse can be forms of elder abuse.

Persons who provide care for elders, whether licensed or not, are mandated to report elder abuse.  In addition, any private citizen can report elder abuse.  You can report abuse by calling (APS) Adult Protective Services or by calling 911.

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 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 and Alameda Counties, including the cities of Walnut Creek, Alamo, Danville, Concord, Brentwood, Pleasant Hill, Antioch, Clayton, etc. His practice includes Medi-Cal qualification for nursing homes, elder law, asset protection and estate planning for seniors.