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11 Things You Can Do To Protect From Elder Scams

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Exploitation of the Elderly

Scams targeting the elderly have become an increasingly concerning issue, exploiting vulnerabilities and often resulting in significant financial and emotional distress for victims. These scams can take various forms, including telephone fraud, internet phishing, and even door-to-door schemes, where scammers use deceitful tactics to gain trust before swindling their targets out of money or personal information. The elderly, often perceived as more trusting and less tech-savvy, are particularly at risk.

These scams not only lead to the loss of life savings but can also cause a profound sense of betrayal and a decrease in quality of life. Awareness and education are key in combating these malicious acts, as is the implementation of stronger protective measures by families, communities, and authorities to safeguard the well-being of the elderly population.

The Role of the Lawyer

Lawyers play a crucial role in advising and protecting individuals, including the elderly, from the pervasive threat of scams. Their expertise in legal frameworks and rights enables them to offer invaluable guidance on how to recognize and avoid fraudulent schemes. By educating clients about the common characteristics of scams, such as unsolicited communications or too-good-to-be true offers, lawyers empower them to act with caution and skepticism. Furthermore, in the unfortunate event of falling victim to a scam, lawyers can provide critical assistance in navigating the complex legal avenues for recourse, such as reporting the crime to the appropriate authorities, and pursuing litigation or other legal actions to recover lost assets. Their advocacy and intervention are essential in not only providing a safety net for victims but also in fostering a broader awareness and deterrence of scams in the community.

Some practical advice for clients includes:

• Refrain from sharing your personal details over phone calls, through the mail, or online.
• If an offer seems unclear or suspicious, it’s best to ignore it.
• Ensure you get a written estimate for any job and make payments only after the work is completed to your satisfaction.
• Properly dispose of any documents containing your credit card information by shredding them.
• Protect your Medicare, Social Security, and credit card information diligently.
• Avoid signing documents that are blank or consenting to open-ended permissions.
• Exercise caution when approached by telemarketers or door-to-door sales agents, unless they are known and trusted by you.
• Approach offers that claim to be free with skepticism, as they may have hidden costs.
• Stand your ground against high-pressure sales tactics that aim to coerce you into making purchases.
• Steer clear of conducting business with unfamiliar companies.
• Be vigilant against telephone fraud, particularly scenarios where someone pretends to be a relative in distress requiring financial help.

 

Need to discuss a plan for your loved one? Call us for a no obligation consultation.

Capacity To Sign Will Challenge Failed

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Probate Court Decision Upheld by Superior Court

The Cranston Probate Courts decision to grant a Petition To Probate A Will over the objection of Appellants, will remain undisturbed as the Petitioner presented evidence to support the testator had capacity to sign estate planning documents, including the Last Will and Testament that was presented to the Probate Court.

Nanci Parenti lived in Cranston, Rhode Island. For almost sixteen years she lived with Mr. Jagolinzer, who had a close friendship with her. In March 2019, Ms. Parenti learned that she had a cancerous brain tumor. Thereafter, treatment did not appear to be successful. In May 2019, she moved to a nursing home and later moved to another nursing home. In October 2011, Ms. Parenti
wrote a will (2011 Will), apparently without the assistance of an attorney.

Attorney Reis met with Ms. Parenti about the prior executed Will. Able to converse with Ms. Parenti in the nursing home, they agreed that Attorney Reis should prepare new estate planning documents. Attorney Reis and Ms. Parenti discussed how she wished to divide her estate, and she described her assets to him. On June 27, Attorney Reis, his office assistant Ms. Cannata, and Mr. Jagolinzer met at the nursing home for Ms. Parenti to sign a new will (June 2019 Will). Ms. Parenti was less communicative and physically drained but understood who Attorney Reis was and that she was signing a new will.

At the signing of the will, Attorney Reis found Ms. Parenti to be competent and understanding of what Attorney Reis was saying but less able to express herself. Ms. Parenti acknowledged that she was signing the will freely.

Ms. Parenti also executed a Health Care Power of Attorney on June 25, 2019, which Mr. Reis and Ms. Cannata witnessed.

On July 17, 2019, Ms. Parenti passed away.

Appellants contend that Ms. Parenti lacked the testamentary capacity required to execute her will in June 2019. “It is well-settled that in a will contest, the proponent of the will bears the burden of proof of testamentary capacity by a fair preponderance of the evidence.”

Testamentary Capacity: The 4 point Test

The proponent must establish that the testator:

(1) had sufficient mind and memory to understand the nature of the business she was engaged in when making her will;

(2) had a recollection of the property she wished to dispose of thereby;

(3) knew and recalled the natural objects of her bounty, their deserts with reference to their conduct and treatment of her and their necessities; and

(4) the manner in which she wishes to distribute her property among them.

Here, Appellee has established that Ms. Parenti possessed testamentary capacity when she signed her will in June 2019. Mr. Reis testified that, despite being less communicative and
physically drained, Ms. Parenti understood what she was doing when signing her will. Mr. Jagolinzer testified that it was clear Ms. Parenti wanted her will to be correct, and Ms. Cannata
stated Ms. Parenti “expressed understanding” what she was signing when executing the will. Mr. Westerman and Ms. Rodriguez, in contrast, testified that Ms. Parenti was in a deteriorating state;
however, they did not see her until after the will was signed and her illness had progressed.

Testimony of Witnesses

Considering the testimony of all five witnesses, the Court concludes that Ms. Parenti had sufficient mind and memory to understand the nature of what she was doing when executing the will. The
only testimony questioning Ms. Parenti’s sound mind was based on an interaction days after she signed the will, with a progressive illness.

The Court finds that Ms. Parenti recalled her property and how she wanted the property distributed, based on the fact that she was able to describe her assets to Mr. Reis and discuss her
intentions for her estate. Testimony from Mr. Reis describing his discussions with Ms. Parenti regarding how to distribute her property suggests that she understood how she wanted the property
distributed and to whom, she knew and recalled the objects of her bounty and she understood the manner in which the property would be distributed.

Each independent witness to the will testified consistently with their affidavits. It is clear that Attorney Reis spoke with Ms. Parenti before the will was executed. It is likely that this
meeting was just four days before the signing of the will, as the power of attorney is dated June 25, 2019. Ms. Cannata and Mr. Reis witnessed the execution of both the Health Care Power of
Attorney and the June 2019 Will.

No Evidence of Lack of Capacity

By contrast, Appellants have not provided any evidence of Ms. Parenti’s mental state when she signed the will or the days leading up to it, such as medical records or testimony that she lacked capacity on the day of signing. The Court cannot rely only on testimony that describes Ms. Parenti’s condition after she executed her will, even if the witness’s statement describes an interaction with Ms. Parenti only days after she signed the June 2019 Will. Rather, the Court was presented with credible testimony from multiple witnesses that support she was of sound mind on the day she signed her will.

Attorney Involvement Involvement

Ms. Parenti sought help from Attorney Reis when she realized her purported October 2011 Will, which she believed was properly executed, had defects that called into question its validity. In an attempt to correct this potential problem, she executed a will in June 2019 with the same general terms as the 2011 Will. She acted so that her wishes would be clear, as to how she desired her property distributed when she passed. There is no claim or evidence here to support that Ms. Parenti was subject to undue influence, and little evidence to suggest that she lacked capacity. Rather, the evidence here tells the story of a seriously ill client seeking help from an attorney to correct a nearly decade-old will that she previously had believed was properly executed, and an attorney who promptly responded to that need.

“For the foregoing reasons, Appellants’ appeal of the probate court’s decision is denied. Ms. Parenti possessed the testamentary capacity to sign the June 2019 Will, which was executed fully in accordance with statutory requirements.”

CLICK HERE TO READ THE FULL COURT DECISION

What are the options to protect our home?

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The Home Equity Rule

The home is the major asset for most Americans. In addition to its financial significance, it often has emotional significance as the place that parents have raised their children and lived for many decades. They have paid mortgages for up to 30 years and often built, repaired, maintained, and improved the properties themselves.

Medicaid law recognizes the special character of homes, in many states exempting them entirely as countable assets. Congress, however, through the Deficit Reduction Act has limited this exemption to the first $688,000 of equity unless a spouse or minor or disabled child is living in the house. States have the option of increasing the exemption to $1,033,000. This has added to the planning that clients with high-value homes should consider.

The Medicaid Payback Lien

In addition, while the house itself may be protected in terms of Medicaid eligibility, it is not protected from a claim for estate recovery upon the nursing home resident’s death. And the proceeds of the sale of the home are not protected if it is sold during the nursing home resident’s life.

One option for the house is aimed at the healthy spouse of someone who is likely to need nursing home care in the future. It simply states that the house is protected, but that it should be placed in the healthy spouse’s name in order to give him or her control and protect against estate recovery in the event he or she predeceases the nursing home spouse.

The House

Protecting the equity of a home is a universal goal for most families.

The house is a unique asset under the Medicaid rules. It is considered a “noncountable ” resource as long as you or your spouse lives there or states an intent to return there to live. This means that the applicant for Medicaid may continue to own a house, no matter what the value, if he or she claims the house as his or her residence, regardless of whether he or she has any realistic prospect of returning home. However, if the house remains in the Medicaid recipient’s estate, after his or her death the state has an automatic claim on the house to the extent of its expenses for the care of the Medicaid recipient. This estate recovery can be protected against by keeping the house outside of the Medicaid recipient’s probate estate.

The first step is to put the house in community spouses, the spouse not in the nursing home, name alone. This gives them complete control over the house and keeps it out of the institutionalized spouses, the spouse in the nursing home, probate estate. There is no penalty for transfers between spouses. Then, you can consider taking other steps to protect the house in case the community spouse ever require long-term care.

So how do you keep the house out of your probate estate so that the state has no access to it, and in your federal taxable estate so that it gets the stepped-up basis? There are two ways to do this. Both cause the house to pass automatically to your beneficiaries without going through probate.

  1. The Life Estate. One planning technique is for you to give the house to your children while retaining a life estate for yourself. This means that you retain current ownership of the property, while your children automatically have ownership after your death. You would be responsible for upkeep of the house and would receive any rental income. The advantage of this method is that it is relatively simple to put into effect. You simply deed the remainder interest to your children. You would also have to file a federal gift tax return, but no tax would be due at this time.
    There are some disadvantages to this approach. First, you give up some control of the house, since your children will have an ownership interest. They would have to sign any deed if you were to sell or mortgage the property or change your mind about who it should go to. If the house were sold during your lifetime, a portion of the proceeds would go to you and the balance to your children, the amount of each share depending on your age at the time of the sale. Finally, you would be ineligible for Medicaid for the five years following the transfer of the remainder interest to your children, though if worse came to worst, your children could deed back to you their interest in the house and thus “cure ” this transfer penalty.
  2. The Irrevocable Trust. The second method of keeping the house in your taxable estate but out of your probate estate is to place it in an irrevocable trust. After you do so, you cannot change your mind. Once the house is in the trust, it is there for good. If the trustee decides to sell the house, the proceeds of the sale must remain in the trust. Although this protects the cash proceeds, it limits your access to them. This would be an effective transfer at the time of creating the trust, causing your ineligibility for Medicaid for the subsequent five years. You would not have the same option to “cure ” the transfer that you would with the life estate. Though there are restrictions, there are also significant benefits to this trust. If drafted as a grantor trust, the creators of the trust would still be eligible for capital gains exclusions and the beneficiaries would receive a step-up in basis. Though no state will ever allow principal to be distributed from the trust to the grantors, many states will allow principal to go to children or heirs of the grantors – allowing for access to the principal that could be gifted from the children back to the grantors. Finally, trustees can sell real estate without risk of the proceeds being deemed countable resources.

Caretaker Child Exception

You can receive Medicaid coverage while still keeping an ownership interest in your home. However, at your death the state will have the right to recover from your probate estate—essentially your home—whatever it pays out for your care. Your home could escape this claim if it were transferred to one or more of your children. A problem with doing this is that under the general transfer penalty rule, you would be ineligible for Medicaid benefits for up to 60 months following the conveyance.

However, an exception to the transfer penalty allows a Medicaid applicant to transfer his or her home to a qualified caregiver child. The law defines a caregiver-transferee as a child of the Medicaid applicant “who was residing in the applicant’s…home for a period of at least two years immediately before the date of the applicant’s…admission to the institution, and who (as determined by the physician) provided care to the applicant…that permitted him or her to reside at home rather than in an institution. ” In order to qualify under this exception, an applicant should be prepared to submit a certification by his or her attending physician which basically states that, but for the caregiver, the applicant would have had to move to a nursing home.

An important exception to Medicaid transfer penalties is for transfers into trust for anyone who is disabled and under the age of 65. Prior to that, transfers directly to the disabled child of a Medicaid applicant were not penalized. But in many cases, it was inappropriate to give funds to a mentally retarded or mentally ill child. At least some states strictly construed the exception to bar the funding of trusts for such children. OBRA ’93 corrected that narrow thinking and broadened the exception to include trusts for anyone under age 65 and disabled, whether or not he/she is a child of the Medicaid applicant. This form describes this planning option. You will need to check with your state Medicaid agency to determine how it construes the requirement that the trust be “solely for the benefit “ of the disabled individual. Some states require that no remaindermen be listed on the trust, that instead it be payable to the disabled beneficiary’s estate on his or her death, or that a (d)(4)(A) trust be used for this purpose.

Exceptions to the Transfer Penalty

Transferring assets to certain recipients will not trigger a period of Medicaid ineligibility. These exempt recipients include:

  1. A spouse (or anyone else for the spouses benefit);
  2. A blind or disabled child;
  3. A trust for the benefit of a blind or disabled child; or
  4. A trust for the benefit of a disabled individual under the age of 65 (even for the benefit of the applicant under certain circumstances).

Special rules apply with respect to the transfer of a home. In addition to being able to make the transfers without penalty to one’s spouse or blind or disabled child, or into trust for other disabled beneficiaries, the applicant may freely transfer his or her home to:

  1. A child under age 21;
  2. A sibling who has lived in the home during the year preceding the applicant’s institutionalization and who already holds an equity interest in the home; or
  3. A “caretaker child, ” who is defined as a child of the applicant who lived in the house for at least two years prior to the applicant’s institutionalization and who during that period provided such care that the applicant did not need to move to a nursing home.

A transfer can be cured by the return of the transferred asset in its entirety. And in some instances the applicant for benefits may be eligible for a “hardship ” waiver.

Still have questions as to how to protect your home? Call us for a no obligation consultation.

Choosing the Right Nursing Home

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What Nursing Home Is Right For My Loved One?

When families are advised that their loved one will need skilled nursing care, one of the first questions they will ask is are there any facilities that we recommend. There are a lot of factors that go into deciding if a particular facility is right for your family member. Some of those factors to consider are:

  • Proximity to where advocates and family members reside – having family visit regularly and being engaged in the care and services provided to their loved ones is critical to ensure they receive the best possible care
  • Understanding the level of care needed: certain facilities are geared toward particular conditions. Understanding a facilities specialty, if any, is important to determining if there is a fit.
  • Know how you are going to pay for the care. Once the family members Medicare benefits are exhausted, and you still require skilled nursing, understanding how to pay for the care needed and developing a path to Medicaid which will help subsidize the cost of nursing home care is critical.
  • Private Pay versus Medicaid – when visiting a facility, know what forms of payment they accept. The overwhelming majority accept Medicaid but a few do not. Follow the link in this article to find out if your facility accepts Medicaid.

Understanding The Different Levels of Care

A Nursing Home (NH) is a facility that provides 24 hour 7 day a week medical care and supervision.

A Skilled Nursing Facility (SNF) provides skilled nursing (examples: wound care, pain management, or bowel/bladder training),  and physical, occupational or speech therapy services. A SNF may also be referred to as a sub-acute rehab. Medicare may cover up to 100 days in a skilled nursing facility if you have met very specific Medicare eligibility guidelines.

Medicare does NOT cover ongoing long-term Nursing Home care. You may require additional care after your Medicare coverage ends. You may choose to pay the nursing home privately, use long-term care insurance or apply for state Medicaid.

A nursing home may also provide long-term care.

Ranking All Rhode Island Nursing Homes and What Payment Options They Accept

Since 2002, Healthcare Quality Reports has published information on the quality of care administered by nursing homes, including data on resident and family satisfaction and care outcomes. If you know in advance that you or a family member will need nursing home care, this information can help you compare nursing homes and choose among them. You can also visit nursing homes or ask friends and family for their thoughts and experiences.

The RI Department of Health’s Healthcare Quality Reporting Program has developed a Nursing Home Summary Report to help you compare Nursing Homes and choose among them. To find the most recent LIST OF NURSING HOMES and REPORT CARD click here. 

The PDF that the above link takes you to assembles many of the key pieces of information that any family will need when making an initial assessment of What Nursing Home is Right For My loved one!

Still have questions about how to proceed? Call me at 401-600-0143 for a no obligation consultation.

ELDER LAW - ASSET PROTECTION

Helping families help their loved ones.

BREAKING NEWS: UPDATED MEDICAID FIGURES

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NEW ALLOWABLE INCOME LIMIT and MONTHLY PENALTY DIVISOR

Rhode Island Department of Human Services – Medicaid Long Term Support Services – has advised that The Allowable Income Limit for 2022 through 3/31/2023 is $9.961 per month. Effective August 1, 2023 the new allowable income limit will be increased to $10,190.00 per month.

This figure is also used as the Penalty Period Divisor for calculating disqualifying transfers of assets. Meaning, for every $10,190 of assets transferred away where something of value was not received in return, will cause a disqualification of one (1) month of LTSS Medicaid benefits for the Applicant for those benefits.

A link to the Rhode Island Regulation on Eligibility Determinations (210-RICR-40-00-3) announcing the change can be found here. You will find the reference on page 9 of the proposed rule.

 

What is the Caretaker Child Exception?

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Caretaker Child Exception

You can receive Medicaid coverage while still keeping an ownership interest in your home. However, at your death the state will have the right to recover from your probate estate—essentially your home—whatever it pays out for your care. Your home could escape this claim if it were transferred to one or more of your children. A problem with doing this is that under the general transfer penalty rule, you would be ineligible for Medicaid benefits for up to 60 months following the conveyance.

Children who care for their parents can take advantage of provisions in the Medicaid Regulations

The Caretaker Child Exception to the transfer penalty can be a valuable tool to preserve the home of parents.

However, an exception to the transfer penalty allows a Medicaid applicant to transfer his or her home to a qualified caregiver child. The law defines a caregiver-transferee as a child  of the Medicaid applicant “who was residing in the applicant’s…home for a period of at least two years immediately before the date of the applicant’s…admission to the institution, and who (as determined by the DHS) provided care to the applicant…that permitted him or her to reside at home rather than in an institution. “ In order to qualify under this exception, an applicant should be prepared to submit a certification by his or her attending physician which basically states that, but for the caregiver, the applicant would have had to move to a nursing home.

If you can get the necessary certification, and if you would feel comfortable with the property in your caretaker’s name solely, it is recommend that you transfer your interest in your home to your caretaker child. No transfer penalty would be triggered and, in addition, the unit would not be subject to any reimbursement claim by the state. Once the transfer is made, your caretaker child would be free to sell the house or simply rent it out. If you choose to transfer the house to your caretaker child, you should discuss the form of conveyance—trust, life estate, or outright ownership—and the tax consequences to each approach.

If you decide to make the transfer, you will have the option of doing so after you qualify for Medicaid, or before you submit the application. To make the transfer before you have qualified for Medicaid may prolong the application process. For that reason, it may be easier to make the transfer after you have been determined eligible for Medicaid. However, we have submitted applications where the home was transferred before and after and all were approved.

Want to discuss how to take advantage of the Caretaker Child Exception with your family? Call us to schedule a no obligation consultation.

Medicaid for Assisted Living

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Assisted Living

The RI Medicaid program covers assisted living services in State-licensed Assisted Living Residences (ALRs) that are certified to participate in the long-term services and support (LTSS) program. Covered services include on-site, 24-hour personal care assistance, homemaker and chore services, medication management, therapeutic, social and recreational activities, and health-related transportation. The amount of these services a person receives may differ based on the scope of their needs.

Medicaid does not cover ALR room and board and add-on services. A person who chooses this Medicaid LTSS option must pay from other resources housing charges and any non-Medicaid covered services (like cable and internet access) they choose to receive from the ALR. To ensure individuals applying can afford these costs, the dollar amount a certified ALR can charge for housing each month is capped. Rhode Island also has a State Supplemental Payment (SSP) program that provides financial help to low-income Medicaid beneficiaries living in ALRs. Depending on the scope of a person’s needs, access to some of the Medicaid certified assisted living residences may not be available.Assisted Living Activities

How to receive services

Case management agencies contracted by the Office of Healthy Aging assist individuals in completing a Medicaid LTSS application, assess the scope of their needs, and assist them in developing a person-centered plan of care. These agencies are also responsible for monitoring the delivery of services in the plan of care and coordinating linkages to benefits across community-based health and social service agencies.

Related Service

Nursing and skilled therapy services are not part of the Medicaid-assisted living services but may be authorized by Medicaid and/or other health insurance, as ordered by a physician.

Who is Eligible?

Adults 19-65 with disabilities, or anyone 65 or older who is eligible for Medicaid LTSS.

Need Assistance Applying?

For more information about Medicaid covered assisted living services and to apply for the same, call THE POINT at 401-462-4444.

A list of assisted living communities is located here

 

Public Health Emergency Continued

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Emergency Policies Remain In Place

On July 15, 2022, Xavier Becerra, Secretary of the Department of Health and Human Services, announced that the public health emergency related to COVID-19 still exists and therefore the public health emergency determination originally announced on January 31, 2020, continues. The determination continues in 90-day increments.

States must maintain Medicaid eligibility standards and cannot make procedures more restrictive than they were on January 31, 2020. In addition, if a Medicaid recipient is validly enrolled in any Medicaid program, then continuous enrollment applies. If a recipient is validly enrolled and reports a change in circumstance, then the change is processed as a redetermination but the individual is still deemed as being validly enrolled.

Retirement Income Exemption Increase

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Rhode Island Increases the Amount of Retirement Income You Can Receive Without Paying Income Tax

A Rhode Island personal income tax modification applies for income from private sector pensions, government pensions, 401(k) plans, 403(b) plans, and other such sources.
For eligible taxpayers, up to $20,000 of their federally taxable income from sources such as pensions, 401(k) plans, and annuities, may be excluded as income subject to Rhode Island personal income tax.

Rhode Island is making it easier on retirees and income taxes

The retirement income exemption applies to qualified taxpayers who:
• Have a federal adjusted gross income (AGI) that includes taxable income from sources such as pensions, 401(k) plans, and annuities;
• Have reached “full retirement age” as defined by the Social Security Administration; and
• Have a federal AGI below a certain amount.

This new law increases the current amount of taxable pension and/or annuity income that can be exempted from $15,000 to $20,000 starting with tax year 2023.
Any military pension included in federal adjusted gross income should not be included within this modification. In this case, taxpayers should refer to subsection 11.
Effective: 7/1/2022
Citation: House Bill 7123, Substitute A as amended
Affects: http://webserver.rilegislature.gov/Statutes/TITLE44/44-30/44-30-12.htm

 

Home Based Medicaid Serivices

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LTSS in Home and Community-Based Settings

Many older adults and people with disabilities who want to stay in their own homes cannot do so without help. The programs that can help you or someone you care for live comfortably and safely at home are called Home and Community Based Services.

Some programs can help you fill prescriptions or get meals or rides. Other programs will help you out at home with activities like personal grooming or getting in and out of bed. The programs you use will be based on your needs.

Medicaid LTSS provides medical care and covers most of the services and supports people need to stay in their homes or a community-setting. People who have the highest or high level of need may get Medicaid LTSS in the home or community setting.

Need to apply for LTSS Medicaid home waiver for a loved one? Contact us.