Walnut Creek Elder Law Blog

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.

When finding a nursing home for your loved one is necessary, it is important to decide what is important for him or her. Things such as location, religious orientation and  access to hobbies should be considered. You should request brochures from several facilities you are interested in, and you should tour several of the the facilities. After you have narrowed your choices, plan on visiting the facilities during business hours, and during off hours. The atmosphere and staff may be quite different, and not what you expected during the off hours.

When you visit the facilities, pay attention to your instincts. Do you feel welcome? Did you have to wait to meet a representative? Did the representative seem genuinely interested in your particular situation? When visiting the facility, do not be afraid to ask as many questions as you can think of. If you are shy about asking questions, bring someone with you to encourage the questions, or they can ask the questions for you. Ask if the facility has survey results you can review, and ask if they have been prohibited from accepting new residents by the state at any time.

You will be under great stress at this time, so it is important that you take a deep breath and understand that there are positive things that you can do for your loved one. Also, do not neglect getting your ducks in a row through the help of an elder law attorney, regarding asset protection, estate planning, public benefits planning and long term care planning for your loved one. 

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.

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.

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.

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.

Most (perhaps 99%) of all revocable living trusts and financial durable powers of attorney are defective for asset protection and government benefits planning, when incapacity occurs.
 
For the older client, we become focused on how we will pay for in-home care,  board-and-care, assisted living facilities and skilled nursing home costs. We are concerned about how to make our assets last longer for our own care. We want to protect assets, and we would like to hopefully leave something to our loved ones.
 
We become concerned with how to qualify for and utilize Medi-Cal  and VA benefits for our care. 
 
The standard language in the revocable living trust and financial durable powers of attorney do not allow for asset protection, protection of the home from a Medi-Cal lien, transfers of assets between spouses (including the home), transfers to children or to other trusts for government benefits planning, if incapacity occurs.
 
Updating the revocable living trust and financial powers of attorney  before incapacity occurs is good 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.

VA AID AND ATTENDANCE BENEFITS

            The VA Aid and Attendance pension benefit program is provided by the Veterans Administration to veterans and their surviving spouses. This benefit helps to pay for in-home care, assisted living facility and nursing home costs. There are income and asset requirements for qualification. When we plan for the VA Aid and Attendance benefit for our senior clients as part of their long term care plan, we also plan for Medi-Cal benefits at the same time. If this  planning is not coordinated and done carefully by an elder law attorney, you may become eligible for the VA Aid and Attendance benefit, but ineligible for Medi-Cal for a long period of time.

             You should see a senior law attorney who is accredited by the Veterans Administration to give advice on the Aid and Attendance program, and who is accredited by the VA to file an application for this benefit on behalf of his clients. The senior law attorney is required to make the application on a pro bono basis on behalf of his clients. Beware of individuals and organizations who appear somehow to be connected with the Veterans Administration. Many times they are annuity salespeople, and are certainly not accredited by the Veterans Administration. They make their living by selling annuities. Annuities may at times be a valuable tool for asset protection, but should not be the focus of long term care planning. In addition, the use of an annuity may be a “time bomb” as far as Medi-Cal eligibility is concerned. The annuity salesman may help create eligibility immediately for the VA Aid and Attendance pension benefit by the use of an annuity, but may create long periods of ineligibility for Medi-Cal. Always ask if the person who is offering to give you advice on the Aid and Attendance benefit has been accredited by the Veterans Administration.  They must  be accredited to file for an application for the VA Aid and Attendance benefit and to give specific advice with regard to the application. If they are not so accredited, they will most likely be in violation of the law.   

             To be eligible for the benefit, the veteran must have been honorably discharged from the service. The veteran must have also served one day during a wartime period, and must have been in the service during a wartime period for 90 continuous days. Also, it is not a requirement that the veteran saw combat, or that he was injured.

            By Michael J. Young, Elder law attorney in Contra Costa County.

 Mr. Young’s office is located at 1931 San Miguel Dr., Ste. 220, Walnut Creek, CA 94596. His office number is 925-256-0298 and e-mail is LawYoung1@gmail.com. You may visit his website at www.WalnutCreekElderLaw.com  Mr. Young serves senior clients in Contra Costa and Alameda Counties. He also has many senior clients in Brentwood, Antioch, Concord, Alameda and surrounding communities. His long term care plans for seniors helps families prepare to pay for nursing home costs and preserve assets. He also helps his clients apply for Medi-Cal and the VA Aid and Attendance Pension benefit. You may see Mr. Young’s “Nuts and Bolts” Guide to Veteran’s Benefits at the following link. www.walnutcreekelderlaw.com/GuideToVeteransBenefits.html