Ronald Morton's Elder Law Blog

A Tale of Two Sisters

While meeting with a client yesterday I heard a story that I thought was instructive and worth repeating.  My client's two aunts were both in the same nursing home.  One of her aunts was destitute, and her room was paid for by Medicaid.  The other had managed to save a couple of hundred thousand dollars and was in the room next door privately paying for her care at about $5,000 per month.  After about 3 years, the other aunt was also destitute and received Medicaid.  My client correctly observed  that both sisters had the same type of room, in the exact same facility, and received the same care, but one was spending her life's savings while the other received the same care at no cost.  My client wisely recognized the wisdom of planning in order to preserve her life's savings. 

Deed Signed by Impaired Individual Held Invalid

A recent case decided by Mississippi's Court of Appeals illustrates the standard of review for overturning the validity of a deed.  In that case, the elderly owner of a funeral home moved in with her daughter in 2001 after being diagnosed with dementia and other infirmities. Over the next two years, the mother showed signs of psychosis, paranoia, and sleep problems with insomnia and was placed on anti-psychotic medication. On April 2, 2003 a quitclaim deed was filed containing the alleged signatures of the mother and her daughter, conveying the funeral home to the daughter's son. In 2006 it became necessary to establish a guardianship for the mother, and at that time other heirs sought to set aside the deed.  The Court found that the Chancellor did not err in rejecting testimony that the mother appeared to be normal in light of medical evidence that her condition was continuing to decline and that she was on anti-psychotic medication. The evidence presented supported, by clear and convincing evidence, the assertion that the mother lacked the mental capacity. 

This case illustrates both the high standard of review for overturning a deed, which are presumed to be valid unless shown otherwise by clear and convincing evidence.  It also illustrates the risk of making such transfers if one suffers from an impairment like dementia.  It may well have been that the mother was perfectly aware of what she was doing when she made the transfer and intended the property to go to her grandson, but the testimony of witnesses to the transaction was not enough to overcome medical documentation of her impaired condition.  Under such circumstances, she would have been wise to have separate medical evidence of her specific condition on same day that the transfer was made as evidence that she was lucid and possessed sufficient capacity to make the transfer.  The family should also have considered videotaping the transaction so all could observe her mental state. Finally, the case illustrates the importance of using the services of an elder law attorney in planning the affairs of someone who suffers from a disability.  While no attorney can guarantee that a transaction will be upheld, an attorney knowledgeable in the disease symptoms and in the legal standards for upholding such transfers likely would have made suggestions that would have made the transfer more likely to have been found valid.  For a list of Certified Elder Law Attorneys in Mississippi, click here.   

In Honor of Our Veterans

Wednesday is Veterans Day, and in honor of our Veterans, the Morton Law Firm is hosting an open house for our clients and their friends and families.  We will also present a brief course on VA Pension benefits.  Many of our Veterans are unaware that they qualify for up to $2,000 in additional compensation to assist them in paying for their care.  To qualify they need to have served in the military at least one day during war time, and have served for at least 90 consecutive days, and have received an other than dishonorable discharge.  This benefit has made the difference between being able to afford assisted living or not for many of our clients.  Please feel free to join us on Tuesday, November 10 at 6:00 pm if you would like to learn more about this important veterans' benefit.

You Do Not Have to Pay a Lawyer To File A Medicaid Application ... and other words of wisdom from our government

Recently the Mississippi Division of Medicaid has decided to spend taxpayer dollars to engage in a campaign informing people that they don't need to hire a lawyer to file a Medicaid application.  I thought I might suggest other "'I'm from the government and I'm here to help you" type of advice.

"If Your are Charged with a Crime, You Don't Have to Hire a Lawyer to Enter a Guilty Plea"

"You Don't Have to Hire An Accountant to Prepare Your Taxes.  The IRS Will Prepare Your Return for You For Free!"

"You Don't Have To Hire A Lawyer To Appeal the Denial of Your Disability Claim. We'll Tell You How To Do It"

Of course, if you want independent, informed advice about all of your options when applying for Medicaid benefits, an elder law attorney is a prudent choice.  Often, in simple cases, a short complementary phone conversation can confirm that you already qualify for benefits.  Such a call can also often reveal planning opportunities that are available that will preserve assets many times those revealed by Medicaid.  It's your choice.  "Trust us, we're from the government ...", vs. an independent advocate that represents only your interests.  

Nursing Home Ratings

US News and World Report has rated nursing homes around the nation.  Mississippi has 25 homes with a 5 star rating.  To see how a particular home that you are considering rates, click here.

Medicaid will Stop Provider Payments

In a letter to Medicaid providers, such as nursing homes, dated June 19, 2009, the Division of Medicaid announced that, due to the state's budget crisis, it was out of money and would cease all provider payments until it received funding.  The letter points to a $39 million shortfall in current budgeting.  Once providers notify Medicaid recipients that their coverage has been discontinued, I presume the plan is for public outcry to place pressure on the legislature to find a method to fund the program - presumably using the hospital tax that the governor wants, since the Division of Medicaid falls under the executive branch and no doubt sent the letter at his direction.

Make the Children Pay?

One writer recently speculated that states could begin looking to children to pay for the Nursing Home and other medical expenses incurred by their parents and paid by Medicaid.  Article here.  Specifically, the suggestion is that Miss. Code Ann. Sec. 43-31-25 be used to require reimbursement from children for the nursing home or other Medicaid expenses of the parent.  While such a cost recovery scheme may be tempting to cash strapped Mississippi, it would also be illegal.  Federal Medicaid law prohibits states from seeking reimbursement from children for Medicaid expenditures.  The law requires the state, however, to seek recovery of those expenses from the estate of the Medicaid beneficiary.  This is known as "Estate Recovery."  So, parents receiving Medicaid benefits who wish to pass down some legacy to their children must do some pre-planning if they wish to protect some of their assets from forfeiture to Medicaid.  If you have questions about how estate recovery can effect your family, feel free to email me or schedule an appointment. 

Mobid Obesity, Chronic Pain and Depression not SSI Disability

Continuing a string of Social Security related cases in which the denial of benefits was upheld, the 5th Circuit upheld the ALJ’s denial of applicant’s SSI application finding that, although the applicant was obese and unable to perform the functions of his prior vocation, he was able to engage in light duty work.  The ALJ chose to disregard the testimony of the applicant’s physician who suggested that the applicant was totally disabled within the meaning of the Social Security regulations.
      
Zimmerman v. Astrue, (5th Cir. August 13, 2008)
Full case: http://www.ca5.uscourts.gov/opinions/unpub/07/07-20766.0.wpd.pdf

Nursing Homes Evicting Costly Residents

Nursing home evictions of frail and ill residents are rising, according to an article in the Wall Street Journal. The U.S. Administration on Aging reports that formal complaints of eviction practices have doubled over 10 years to 8,500 in 2006, and the practice of involuntary nursing home evictions may be far more prevalent because not all residents file complaints.

Garnishment of Social Security Benefits Illegal

The Social Security Administration's Inspector General concludes in a recent report that many banks are violating federal law by garnishing accounts that receive electronic deposits of Social Security benefits. The practice could imperil millions of low-income seniors and people with disabilities who rely on Social Security.