Category Archives: Elder Law

Elder Law. Advanced directives. Power of attorney. Living will. Health care power of attorney. HIPPA. DNR. Long Term Care Insurance. Medicaid. Medicaid Penalty Period. Medallion Signature. Social Security Payee Representative.

Let’s talk about dying!

Today is National Health Care Directives Day.   A day to talk about death.    A day to talk about Living Wills and Health Care Power of Attorney forms, referred to as advance health care directives.

Why is it important to talk about dying and health care directives.  It’s simple.     We will all die.   However,  the way we will die will be different than the way our grandparents died.   They died fast, due to acute illnesses like influenza or pneumonia.  A government study envisions that today, 80 percent will die a lingering death from things like Alzheimer’s, emphysema, cancer and Parkinson’s.   Our children or our spouse will need to make choices on our behalf between life…and quality of life.

When having dinner with your friends or family tonight, think about that sobering number.   Three out of the four people sitting at the dinner table will die a lingering death.    Someone will need the legal authority to make health care choices on your behalf.   Someone will be hoping they are making the choice you would have wanted.

Rather than talking about the  engagement ring Brad gave Angelina….make your dinner conversation important.    Ask yourself these questions:

  • Who do you want to make health care choices on your behalf?
  • What choices do you want them to make?
  • Do you want to donate your organs or your tissues?
  • Have you completed a living will and a health care power of attorney form documenting these wishes.   If so, where are they?    In California and some other states, these two forms are combined in a single form referred to as an Advance Health Care Directive.

Your estate planning lawyer can help you complete a Living Will and a Health Care Power of Attorney form.     You have the right to complete these forms without involving a lawyer.

Hers’s some resources that may help you start the discussion:

A great presentation by Dr. Peter Saul at the TED conference called “Let’s talk about dying.”
When families can’t agree what to do:   A personal experiences described in the San Jose Mercury News:
Where Can You Get Free Health Care Directive Forms:


25 Documents You Need Before You Die

Recently, the Wall Street Journal weekend edition had a very interesting article titled “25 Documents You Need Before You Die.”

Basically, it says that you should make sure that the originals of all of your valuable papers are put somewhere safe and that a loved one knows where that safe place is. Otherwise, when you become incapacitated or after you die there may be a great deal of frustration and unnecessary work as your heir or estate representative tries to figure out what you’ve done and how to prove it.

Check out this article and also check out Die Smart for more information on what to do.

National Healthcare Decisions Day – April 16, 2011

National, state and local organizations have joined together to ensure that all adults have the opportunity to communicate and document their healthcare decisions. Too often, someone’s wishes are not known and steps are taken during a critical medical situation that he or she would not have wanted.

Have you done any advance healthcare planning? Do you even know what your choices are? Have you prepared an advance healthcare directive and shared its contents with your loved ones?

The objectives of the National Healthcare Decisions Day are to provide information to the public and improve the ability of healthcare facilities and providers to offer guidance about advance healthcare planning to their patients.

Don’t force your family to make end of life decisions for you. Tell them what you want and confirm your choices in writing with a living will or other advance directive document. Make April 16th the day you have a discussion with your family, convey your wishes and sign the necessary paperwork.

For further information, go to or or

CLASS Act – A national long-term care insurance progran

What is CLASS Act?
The Community Living Services and Supports (CLASS) Act is a new national, voluntary long-term care insurance program; it was tucked into the Affordable Care Act passed by the United States Congress in 2010. It is federally administered but consumer financed. Its intent is to provide care for those unable to perform the activities of daily living.

How does the CLASS Act compare to the type of private long term care insurance that’s been available for many years? We asked Everett Lebherz, President of Evco Insurance Services, for his perspective as well as for a comparison to long term care insurance. Here’s what he told us.

Although long term care is very expensive, only about 5% of the U.S. population now has long term care insurance. For those who qualify, some of their long term care expenses will be covered by Medicaid. In fact, 60% of the cost of long term care for those currently enrolled in Medicaid is paid by the government. CLASS Act should change that.
What’s the purpose of the new CLASS Act?

The purpose of the CLASS Act is not to fix the problem with the majority of the private sector (who has no insurance or opportunity for government help). The purpose is to take a step towards turning long term care services and supports from a program funded largely by Medicaid (which provides approximately 60% of the money spent on eligible recipients each year) into one that is self-funded by having healthy participants pay for those participants in need of care. The plan is for any benefits under the CLASS Act to be supported solely by the premiums paid into the program.

Who qualifies?

  • CLASS Act
    Everyone who is “actively at work”! The cost will vary only by age and concessions will be made for those who fall below the federal poverty income and for students under the age of 22. It is expected that this later group will pay only $5 until they no longer qualify for the concession at which point they will be charged the normal rates based on their age.
  • Private long term care insurance
    Qualification is required but quite easy. If you are under the age of 70, you participate in a phone interview during which a cognitive test is given. Medical records are rarely ordered unless you have a pertinent pre-existing condition. If you are over the age of 70, medical records are ordered and a similar phone interview is conducted.

How can I enroll?

  • CLASS Act
    Employers have the option to offer this program to their employees. If they decide to offer CLASS Act, every employee will automatically be enrolled in the program unless they decide to opt out. Premiums will be deducted from each employee’s paycheck.  If you work for a company that doesn’t choose to participate, there will still be a way for you to participate. However, the Secretary of State has yet to develop specific enrollment procedures.
  • Private long term care insurance
    Any long term care insurance agent, such a Lebherz, can begin the application process. You can purchase this insurance on an individual basis and the government offers various tax credits to everyone who does so. When you contact an insurance agent, you will learn that there are spousal as well as family and group discounts if you can get your friends and family to apply with you. Employers also have the option to purchase private long term care insurance for their employees which can then be extended to family members.

When can I file a claim?

  • CLASS Act
    You must be enrolled in the plan for five years prior to being able to file a claim. After that, you can qualify for long term care services if you are considered disabled. The law defines disabled for this purpose as having lost the ability to perform at least two activities of daily living such as bathing, eating, dressing and mobility. There is no mention of whether policy premiums will cease once a claim is being paid.
  • Private long term care insurance
    Once approved, you can file a claim as soon as you need assistance with at least two activities of daily living. There is a waiting period, usually 30 – 90 days, during which you are responsible for the initial costs of the required services. Premiums typically cease as soon as the insured’s claim has been accepted.

 How solvent is long term insurance expected to be and how are premiums managed?

  • Class Act
    By law, it is required to project 75 years of solvency. Many groups believe this project will prove incorrect; if that is the case, the Secretary of State has the ability to adjust premiums to ensure the solvency. In addition, the board of directors, appointed by the president of the U.S., will manage CLASS Act and may impose waiting periods for new enrollees if they find the fund estimates are incorrect.
  • Private long term care insurance
    Rather than increasing premiums for current policy holders, it is likely that the insurance carriers will sell policies at a higher cost to new buyers. Once you have purchased a policy, it is expected that your premiums will remain level.

 What if I need long term care services now?

  • CLASS Act
    Enroll in this program if you feel that you are in a financial position to pay five years’ worth of premiums…and expenses…prior to filing a claim. If you don’t think you’ll have enough assets to do this, some states have programs available so you can spend down your assets and file for Medicaid. For example, Medi-Cal in California will provide support if your assets are below $2,000.
  • Private long term care insurance
    You should consult a private long term care insurance agent and determine the feasibility of a private plan.

What if I’m healthy and want protection?

  • CLASS Act
    According to Everett Lebherz, the thing to do is to opt out. If you are healthy, there may be better options. The CLASS Act is new and has many kinks. Many people wonder whether it will ever completely roll out. If it does, it’s clear that those with pre-existing conditions or already claiming Medicaid benefits will enroll with hopes of assistance in five years. This leads some to believe that those currently in need of long term care will definitely file claims when the benefits are available, most certainly increasing the cost of policies for the rest of CLASS Act participants. As premiums increase, participation will probably drop. Since the program is self funded, this may cause the program to fail at some point, leaving people who were receiving care or had paid into the program for several years without the possibility of benefits.
  • Private long term care insurance
    Plans can be designed to keep you in your home or to provide care in a facility. Plans can be adjusted to fit your budget and requirements. And premiums are more likely to remain level.

 What should I do?

The CLASS Act provides ample benefits for anyone who is unhealthy or already in need of long term care as long as they can wait five years for assistance and can accept the one benefit plan that CLASS Act provides everyone. If you are healthy, speak with a long term care insurance agent and explore the alternatives available on a private level. Look at all of your options before deciding what will work best for you.

Medical Identity Theft

  • Identity theft is a huge problem in this country, not only for the living but for the deceased as well. Thieves steal Social Security numbers and other identity information and then apply for credit in the name of someone else. It can take years to untangle the ensuing mess that occurs once the theft has been discovered. A book, shortly to be released by Die Smart, “Grave Robbers – How to Prevent Identity Theft of the Deceased”, gives valuable information on what to do so this doesn’t happen to the identity of a family member or other loved one who has died.

There’s another kind of identity theft, one that’s not as well known but equally as critical an issue – that of medical identity theft. It occurs when someone steals your personal information (like your name, Social Security number or Medicare number) in order to obtain medical care, buy drugs or submit fake billings to Medicare in your name.

In addition to disrupting your lie and damaging your credit rating, the damage can be life threatening to you if the wrong information ends up in your medical records.

There are steps you can take to stop medical identity theft from happening to you.

  • Guard your Medicare and Social Security numbers. Treat them in the same way as you treat your credit cards.
    Be suspicious of anyone who offers you free medical equipment or services and then requests your Medicare number. Similarly, be suspicious if someone offers you free groceries or transportation in exchange for your number.
    If someone calls you claiming to be conducting a survey and asks for your Medicare number, hang up.
    Don’t give information to people who claim to be from Medicare or Social Security and ask for payment over the phone or the internet.
    Check all of the medical bills, Medicare summary notices, explanation of benefits and credit reports you receive.

When reviewing paperwork, ask the following questions:
Were you charged for any medical services or equipment that you didn’t receive?
Do the dates of services or charges look unfamiliar?
Were you billed for the same thing twice?
Does your credit report show any unpaid bills for medical services or equipment you didn’t receive?
Have you received any collection notices for medical services or equipment you didn’t receive?
If the answer to any of the above is “yes”, contact your healthcare provider. There may just be a mistake on your bill.
If your complaint isn’t resolved by your healthcare provider, contact Medicare.

If you suspect Medicare fraud, contact the Department of Health and Human Services Officer of Inspector General.
If you think someone is misusing your personal information, contact the Federal Trade Commission.
If a family member is receiving medical care and is unable to check his or her own bills, be sure to validate all of the information on them every time a new invoice is received. Don’t let medical identity theft happen to you or someone you love.