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Capacity To Sign Will Challenge Failed

By Uncategorized

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

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.

 

Will I Ever Live In A Nursing Home?

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How Much Care Will You Need?

The duration and level of long-term care will vary from person to person and often change over time. Here are some statistics (all are “on average”) you should consider:

  • Someone turning age 65 today has almost a 70% chance of needing some type of long-term care services and supports in their remaining years
  • Women need care longer (3.7 years) than men (2.2 years)
  • One-third of today’s 65 year-olds may never need long-term care support, but 20 percent will need it for longer than 5 years

Distribution and duration of long-term care services

Type of care Average number of years people use this type of care Percent of people who use this type of care (%)
Any Services 3 years 69
 

At Home

Unpaid care only 1 year 59
Paid care Less than 1 year 42
Any care at home 2 years 65
 

In Facilities

Nursing facilities 1 year 35
Assisted living Less than 1 year 13
Any care in facilities 1 year 37

Who Pays for Long-Term Care?

The facts may surprise you.

Consumer surveys reveal common misunderstandings about which public programs pay for long-term care services. It is important to clearly understand what is and isn’t covered.

Medicare:

  • Only pays for long-term care if you require skilled services or rehabilitative care:
    • In a nursing home for a maximum of 100 days, however, the average Medicare covered stay is much shorter (22 days).
    • At home if you are also receiving skilled home health or other skilled in-home services. Generally, long-term care services are provided only for a short period of time.
  • Does not pay for non-skilled assistance with Activities of Daily Living (ADL), which make up the majority of long-term care services
  • You will have to pay for long-term care services that are not covered by a public or private insurance program

Medicaid:

  • Does pay for the largest share of long-term care services, but to qualify, your income must be below a certain level and you must meet minimum state eligibility requirements
  • Such requirements are based on the amount of assistance you need with ADL
  • Other federal programs such as the Older Americans Act and the Department of Veterans Affairs pay for long-term care services, but only for specific populations and in certain circumstances

GOOD TO KNOW

Like public programs, private sources of payment have their own rules, eligibility requirements, copayments, and premiums for the services they cover.

Health Insurance:

  • Most employer-sponsored or private health insurance, including health insurance plans, cover only the same kinds of limited services as Medicare
  • If they do cover long-term care, it is typically only for skilled, short-term, medically necessary care

There are an increasing number of private payment options including:

PLAN BEFORE YOU HAVE A NEED

Planning for the eventuality of needing long term care is critical in reducing stress and uncertainty. Meeting with an Elder Law attorney familiar with the rules of Medicaid qualification is a step in the right direction. Contact our office for a no-obligation consultation to see if developing an estate plan with the goal of Medicaid qualification is a right fit for you.

Can I Deduct Nursing Home Expenses?

By Uncategorized

My mother is in a nursing home. Can she still deduct this expense?

Yes. For 2018, in certain instances nursing home expenses are allowable as medical expenses.

  • If you or someone who was your spouse or your dependent, either when the service was provided or when you paid them, is in a nursing home primarily for medical care, then the entire Long Term Carecost including meals and lodging is deductible as a medical expense.
  • If the individual is in the home mainly for personal reasons, then only the cost of the actual medical care is deductible as a medical expense, not the cost of the meals and lodging.

To determine if your mother qualifies as your dependent for this purpose, refer to Whose Medical Expenses Can You Include and Nursing Home in Publication 502Medical and Dental Expenses.

  • Deduct medical expenses on Schedule A (Form 1040)Itemized Deductions.
  • The total of all allowable medical expenses must be reduced by 7.5% of your adjusted gross income.

This write-off is only available to filers who itemize. People who qualify for it can deduct insurance premiums paid with after-tax dollars, plus many costs not always covered by health insurance—such as for long-term care, prostheses, a wig after chemotherapy and more.

Auditor’s report depicts disarray in R.I. social service programs

By News

The report issued on the roll-out of the computer system shows continued problems

The Rhode Island Department of Human Services (“DHS”) which administers the Medicaid program has been attempting to roll out a new computer system for several years. The system was designed to speed up application review and automate the application process to an on-line system. Unfortunately per the auditors report, the system is still experiencing issues. 

For those attorneys who assist elder clients with Medicaid applications this has been a challenging time. Medicaid will pay for the nursing home care needed by these elderly clients who have less than $4,000 in countable assets. It is stressful to family members who have submitted applications for coverage, who have a loved one being cared for at a nursing home, and not knowing if their application has been approved. They fear the consequence of an unexpected denial and how that may impact a spouse or the recipient.

Applicants can wait months or years prior to receiving an approval of their application.

Rhode Island law requires DHS to pay nursing homes for any care given patients who have applications pending for greater than 90 days. This law has allowed payments to go out, facilities to get paid, and patients to receive the care they need, until the application is approved.

Fortunately, the reports also states that things are improving and applications are being reviewed quicker and more accurately. The employees at DHS have done an admirable job overcoming a challenging roll-out but still have much work to do.

Source: Auditor’s report depicts disarray in R.I. social service programs

If you or a loved one wants to learn more about qualifying and applying for Medicaid benefits, please contact our office for a free consultation.

Caretaker child exception can protect residence of Medicaid recipient

By News

Caretaker Child and Medicaid Qualification

Children are often confronted with difficult decisions when time and age catch up with their parents. Many children have been pushed into the role of being primary caregiver for their parents. The motivation stems from the very reasonable wish to keep parents at home for as long as possible despite health and medical issues of parents that indicate the parents need additional assistance with activities of daily living.

When children assume the role of caregiver to their parents with the goal of being able to avoid nursing home care for parents, there are benefits to this arrangement. Beyond the obvious advantage of the peace of mind of knowing you are doing all that you can keep your parents comfortable.

When a parent reaches the point in life where medical needs are increasing, it is prudent for the surrounding family to contact an elder law attorney who can explain the necessary and proper documents to have in place for parents so that children can assist with the parents legal and medical needs.

Children often become caregivers for parents.

In addition, the elder law attorney should be prepared to introduce you to the Medicaid program and how it works for people who are expected to need skilled nursing and long term care.

Family should advise the elder law attorney about any children living at the home caring for a parent. These facts create a unique opportunity to protect the home of the parent from possible long long term care costs while still maintaining Medicaid eligibility.

If a child lives with a parent of the two (2) year period before the parent needs to enter into a nursing home, an if the child had not been with the parent the parent would have had to live in a nursing home, the parent can transfer the home to the caretaker child without being disqualified from Medicaid benefits. The parents doctor needs to certify to this arrangement and time frame for this exception to the transfer penalty to work.

The below link to an article explains some of the things that will need to be demonstrated to take advantage of this Medicaid planning opportunity. In Rhode Island, the rules are similar to the attached article but concerned individuals should meet with an elder law attorney to discuss the caretaker child exception as it applied to their facts.

Source: James Contini column: Caretaker child exception can protect residence of Medicaid recipient

 

Want to lean more? Contact our office for a no-cost consultation.

AARP ranks Rhode Island 32nd among states in meeting long-term care needs

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Source: AARP ranks Rhode Island 32nd among states in meeting long-term care needs

PROVIDENCE, R.I. — Rhode Island ranks 32nd in the nation, and the worst in New England, when it comes to meeting the long-term care needs of older residents and people with disabilities, according to a scorecard released this week by the national nonprofit AARP.

The good news: Rhode Island showed improvement in all but one category.

“The vast majority of older Rhode Islanders want to live independently, at home, as they age — most with the help of unpaid family caregivers,” Kathleen Connell, state director of AARP Rhode Island, said in a statement released Wednesday. “Even facing tight budgets, Rhode Island is making progress to help our older residents achieve that goal. However, this scorecard shows we have more to do, and we need to pick up the pace.”

Rhode Island ranks 22nd nationally “support for family caregivers” and 24th in “quality of life and quality of care.” The state ranks 35th in “effective transitions,″ or how effectively the state transitions residents between nursing homes, hospitals and homes — the only category that showed a decline.

The report — “Picking Up the Pace of Change: A State Scorecard on Long-Term Services and Supports for Older Adults, People with Physical Disabilities, and Family Caregivers” — is the third in a series that ranks states overall and on 25 separate indicators in five key areas: affordability and access; choice of setting and provider; quality of life and quality of care; support for family caregivers; and effective transitions between nursing homes, hospitals and homes.

Unpaid family caregivers provide the bulk of care for older Rhode Islanders, in part because the cost of long-term care remains unaffordable for most middle-income families, according to AARP Rhode Island. More than 134,000 Rhode Islanders help care for their aging parents, spouses and other loved ones so they can stay at home. AARP estimates the value of this unpaid care at about $1.78 billion.

“Many [family caregivers] juggle full-time jobs with their caregiving duties,″ Connell said, while “others provide 24/7 care for their loved ones.” Family caregivers “save the state money,″ she said, “by keeping their loved ones out of costly nursing homes – most often paid for Medicaid.″

Rhode Island improved its rank from 50th to 44th in the percentage of Medicaid long-term care dollars for older adults and people with physical disabilities that support care at home and in the community.

The report comes at a time when proposals in Washington are being considered to drastically cut federal Medicaid funding, which Connell said “would threaten these advancements, likely resulting in our most vulnerable citizens losing the lifesaving supports that they count on.″

The scorecard was developed AARP with the support of The Commonwealth Fund and SCAN Foundation.

The AARP Rhode Island has more than 138,000 members age 50 and older in the state.

New England Scorecard Rankings (best to worst):

Vermont: 3

Connecticut: 10

Massachusetts: 11

New Hampshire: 16

Rhode Island: 32

Rhode Island’s scorecard:

Overall: 32

Affordability and Access: 34

Choice of Setting and Provider: 30

Quality of Life & Quality of Care: 24

Effective Transitions: 35

-larditi@providencejournal.com

(401)277-7335

On Twitter: @LynnArditi

Many Rhode Island Nursing Homes Awaiting Payment from State

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Troubled launch of the State’s new UHIP computer system at center of issue

Since the launch of the Rhode Island’s trouble social services system, UHIP, many nursing homes have gone without payment for Medicaid patients. Owed for months of care, many administrators are concerned they won’t be able to go without payment for much longer.

Debra Griffin is the administrator at Hattie Ide Chaffee Nursing Home and Rehabilitation in East Providence. She also chairs the state nursing home association. Griffin says the system for getting paid for these patients was inefficient before but it’s worse now.

AR-161019823

RI DHS Executives

“We haven’t received an approval since September. And that was for someone back to last April,” says Griffin.

Griffin says firing Department of Human Services workers who understood long- term care Medicaid applications before the launch of the new system was a mistake.

“Long- term applications are not run of the mill,” said Griffin. “You have to have a level of knowledge and expertise in the approval process.”

Governor Gina Raimondo acknowledges letting workers go before the launch of the system that was a mistake. The Governor has just accepted the resignations of two top officials involved in the launch. But Griffin says that the governor’s latest actions to fix the problem may not be enough to solve nursing homes’ financial woes.

Griffin says the state owes her home more than $200,000, and most nursing homes in the state are still awaiting payment.

The original Article was written by Kristen Gourlay for RINPR and can be found HERE.

Matt Leonard