Baby Boomers thinking about caring for aging parents, but not doing much to prepare for it

Interesting: A recent survey by More magazine found that while a majority of Baby Boomers want to support and provide for their aging parents, but very few know what it will entail or have made any preparations for that eventuality. This certainly mirrors what I see in my own Florida elder law practice. In this segment of the Aug. 28 Today show, Matt Lauer discusses the findings with guests and interviews one Baby Boomer who is currently caring for his parents.

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Good news, seniors: Medicare Part D costs to remain stable for 2014

Medicare Part D premiums will remain level in 2014, according to the federal Centers for Medicare and Medicaid Services. The average premium is expected to be about $31 in 2014, up from $30 for the last three years. The annual deductible is expected to fall from $325 to $310. The estimates are based on  bids submitted by drug and health plans for next year. The program is implemented primarily through private drug plans that contract with pharmaceutical companies. 

This year's open enrollment period begins Oct. 15 and ends Dec. 7. During this period, people 65 and older may select a Medicare Part D Plan. You can get help finding a plan that's suitable for your needs with the government's Medicare tool.

If you are signing up for Medicare for the first time, you are not required to sign up for Part D. If you do not take expensive prescription medications, you may choose not to enroll. However, if you pass on Medicare D and want to sign up later, you will pay a late enrollment penalty, which increases by 1%  for each month you are not enrolled.

The donut hole for prescription drugs is also shrinking. In 2013, the donut hole was the point at which you and your plan together paid $2,970 on prescriptions until you spent $4,570 out of pocket. The donut hole will shrink in 2014, when the upper end decreases to $4,550. The donut hole is expected to close entirely by 2020.

Although Medicare Part D has its fair share of critics, many experts - including those on the political right - say that it's been a great success. In an Aug, 9 article, Forbes magazine describes Medicare Part D as "the most cost-effective and successful entitlement program the federal government runs" that has "subsidized costs of prescription drugs for millions of seniors and Americans with disabilities." More than 6.6. million people with Medicare have saved more than $7 billion on prescription drugs as a result of Part D.

Football coach's heirs cry foul

Deceased college coach Jim Carlen's three children are in court, claiming their father fumbled his last will. Or to put a finer point on the metaphor, that he was tackled by his second wife.

A highly regarded football coach at the University of South Carolina from 1975 to 1981, Carlen enjoyed a lucrative post-football career in banking and real estate. He died in 2012 at age 79 after several years of cognitive decline that first manifested itself in 2009, when he gave up driving. His estate is estimated at about $10 million.

Carlen's first marriage to wife Sharon produced three children. In 1983 he remarried and had a child with his second wife, Meredith. According to an August 1, 2013 article in the newspaper The State, the children from his first marriage allege that their father lacked the mental capacity to know what he was doing when he revised his will in 2010. That will, filed with the  probate court after his death, differed from all his prior wills in that it left nothing to his children and everything to Meredith. The children are petitioning the court to replace Carlen's 2010 will with his 2007 will. They claim that the later version is the product of undue influence over someone with diminished mental capacity, and that the 2007 will reflects their father's true wishes. The State article quotes from their court petition:

"In late 2010 Carlen was driven from Columbia to the law office of an attorney in Hilton Head Island...While in Hilton Head, Coach Carlen was apparently presented with a document entitled Last Will and Testament … which he purportedly signed...Unlike the 2007 will which provided for both Coach Carlen’s children and his wife, Meredith, the 2010 will left all of his property to his wife Meredith and left nothing whatsoever to his children or grandchildren: not money; not personal property; not a photograph; (nor) memorabilia from any point in Coach Carlen’s career or a token for them to remember him by...Carlen was made to execute a new power of attorney in favor of Meredith, empowering her to assume full control over all aspects of his financial affairs...After she assumed control over Carlen’s finances, she stopped making annual tax-free gifts to the three children – gifts that Carlen customarily made.Meredith led the Carlen children to believe that she may have lacked the financial resources to provide for Coach Carlen’s basic needs. Clearly this was not the case..."

Among the assets in Carlen's estate are gold coins valued at $538,000; close to $2 million in Coca Cola stock; interest in several pieces of property totaling about $300,000; and a half interest in an umbrella company that oversaw some of Carlen's business interests, worth about $3 million. 

In the fullness of time, the matter will be decided in the courts, at great expense to all concerned in time, trouble and legal fees.For now, here's my takeaway from the Carlen estate planning fiasco: If you are the testator (person creating a will), you should take steps to lessen the possibility of your estate being challenged, particularly if you anticipate that there may be disgruntled heirs out there who will challenge it. Steps to take include:

• Make sure your will, trust, power of attorney or other documents have every legal "i" dotted and "t" crossed and are drafted and executed in conformity to Florida law if you are a Florida resident, or in conformity with the state in which you are domiciled. 
• Consult with a qualified, experienced estate planning/elder law attorney. He/she should take the time to discuss the ins and outs of your family and financial situation, not just quote you a fixed price and grind out documents through a boilerplate process. Beware of do-it-yourself forms and office supply forms.
• If  there are potential concerns about your mental capacity, your lawyer may advise you to see your physician, psychologist or psychiatrist to obtain documentation of your competency. Note that declining capacity does not necessarily mean you are incapable of understanding and executing an estate plan. Even if someone is "slipping," he/she may be perfectly lucid at times and capable of doing so. Each individual's situation is different and must be assessed individually. Your attorney will know what questions to ask and how to handle the situation for your and your family's protection.
• Do not have beneficiaries present at your consultation with your attorney. A competent and skilled estate planning lawyer will, rightfully, exclude such an individual from your consultation, at least in the beginning stages, and even if you and the other person insist that it's fine with both of you. This is how your attorney protects you, as well as your beneficiary, from possible future claims of undue influence or fraud.
• You should select your estate planning attorney. Your beneficiary should not. If you use an attorney selected by the beneficiary, you open the door to allegations of undue influence, as the Carlen case illustrates.
• Your attorney may suggest that you use a trust, rather than a will, as the centerpiece of your estate plan. Because a trust is not public record, it provides additional insulation against possible attack.

On the other side of the coin, if you believe that you have been improperly "cut out" of a loved one's estate plan because of undue influence or fraud, or because the testator did not have the mental capacity to know what he/she was doing., be prepared: This type of litigation is usually a long and expensive process, with no guarantee of success. 

Long-Term Care Commission meets, recommendations due end of September

The Federal Commission on Long-Term Care held its first meeting at the end of June. It has a scant three months to wrap up business. By the end of September, the panel must submit recommendations on how to finance long-term care services for seniors and the disabled. There are six Republicans and nine Democrats on the commission. Dr. Bruce Chernof heads the group.

Given the recent history of animus between the two political parties, it's little wonder that many in Washington are skeptical about the group's chances of success. I know one thing: something must be done. As a Florida elder law attorney, I meet daily with families in agony over how to finance care for their elderly parent, spouse or other loved one. 

Right now, the enormous expense of long-term care is threatening Americans' savings and security. The Medicaid long-term care program, which covers the expense for most people receiving long-term custodial custodial care in nursing homes, cannot keep up with the demand from our aging population. At the same time, long-term care insurance has become more expensive and difficult to obtain.

According to a report submitted to the commission by the AARP, this bad situation is only going to get exponentially worse. Blame demographics: The population bulge that is the Baby Boomers provide much of the family care that keeps elderly parents out of nursing homes. However, as the Boomers age and themselves need long-term care, there will be fewer members in the next generation to serve as family caregivers. The AARP 's chart illustration the problem:

You can read the original AARP report here.

The commission will probably not be the final word or have all the solutions. But even if it is just the first step in the long-overdue national discussion about this serious issue, it will have accomplished a great deal.

If you are concerned about long-term care costs, we can advise you about the new alternatives to traditional long-term care policies. Traditional long-term care policies require an annual premium and can have their premiums raised; moreover, if you do not file a claim all of the premiums are lost to the insurance company. There are newer types of policies available that cannot raise the premium, and guarantee the return of most of your premium, and in some cases even more if you do not use your coverage. Alternatively, our Florida elder law attorneys can assist in certain cases in planning for Medicaid and/or Veterans benefits for long-term care costs. Contact us for advice.

New HIPAA regulations give patients easier access to their health records, more protections

Patients will have significantly more privacy protections and greater access to their medical records under new regulations issued by the U.S. Department of Health and Human Services. The rules, the HIPAA Omnibus rules issued January 2013, create sweeping changes to the 1996 Health Care Portability and Accountability Act. Medical providers have until Sept. 26, 2013, to come into compliance. The intent of the rules is to modernize HIPAA for today's environment in which medical information is stored electronically, and to bolster the public's confidence that their personal health records can be safely and securely maintained in electronic format.

The rules provide more severe penalties for providers who breach privacy, require the encryption of data, tighten controls on the personal health data that may be shared or sold for marketing or fundraising purposes, compel notification of patients if a breach of their data has occurred, and extend the regulations to any vendors or other business associates who may have access to' patient health records.

From a patient perspective, the following changes are the most notable:

• A patient has the right to request his/her personal health records in electronic format. Physicians must furnish the records within 30 days, with one 30-day extension permitted. Copies must be furnished in the format requested by the patient if the record can be reproduced in the requested format; if not, other electronic readable formats may be offered.

• If the patient wants an electronic record sent to a third party such as a caregiver, physician or mobile app, the request must be made in writing.

• A patient who pays out-of-pocket for a treatment may request that his/her insurance company not be notified, and the request must be honored.

• If a patient's privacy has been breached, the patient must be notified within 60 days. Prior to the omnibus rules, a breach required disclosure only if was determined to cause significant "harm" to the patient.

• Family members and caregivers of deceased patients will have greater access to the deceased patient's medical records, although the physician is required to release them only to the extent with which the requesting party was involved with the decedent's medical care. Records may not be released if prior to death the patient request that they not be shared.

The new rules do not change our attorneys' recommendation that clients include HIPAA waivers in their estate planning documents. A HIPAA waiver should be included in your Health Care Power of Attorney. That way, the person you have empowered to make your medical decisions will have access to your health providers and be able to discuss your situation with them. Even if you have signed a HIPAA waiver in your doctor’s office, it may be unavailable or inadequate to meet your needs with other doctors, hospitals, pharmacies, or health insurance companies. If you have an existing Health Care Power of Attorney that does not include the HIPAA waiver, you should either have it modified, or execute a separate HIPAA waiver.

A HIPAA waiver should also be included in your Revocable Living Trust. If you become disabled and your trustee must manage the assets in the trust, he/she will need to provide documentation of your disability to your financial institutions. A HIPAA waiver for your trustee relieves your medical providers of liability and enables your trustee to secure the needed information from them. 

More information about the new HIPAA rules is available at US Dept. of Health and Human services website.  

Florida Medicaid Managed Care Program explained at Karp Law Firm events

Our Florida elder law and estate planning lawyers are committed to keeping our clients and the community updated on developing events and new laws that may impact them. Toward that end, our law firm organized a series of breakfast workshops in August to familiarize local professionals with Florida's new Medicaid Managed Care Program.  The program is scheduled to roll out September 1, 2013. This was the first time representatives of the program and the four local state-approved managed care companies participated in a group forum. In attendance were over 150 case managers, social workers, health care professionals, and others who work with Florida's elderly and their families. 

Special thanks to our community-minded hosts:

• The Brennity in Port. St. Lucie (Thank you, Debbie North and staff)
• Allegro Senior Living Community in Jupiter (Thank you, Regina Natoli-Sanchez and staff)
• Arden Courts Memory Care Community, Delray Beach (Thank you, Marcia Teele  and staff)

And to our guest speakers:

• Kim Clawson, Director of Elder Helpline, Area Agency on Aging/Your Aging Resource Center
• Nancy Partin, Program Operations Administrator, Department of Elder Affairs, Comprehensive Assessment and Review for Long-Term Care Services (CARES), Region 9A
• Sunshine State Health Plan: Amarilis Fernandez, Kathleen Rupp
• United Health Care: Tulin Rivera, Ronel Antelo
• Coventry Health Care: Rick Mabe, Hylan Bryan, Mariangeli Cataluno, Daphne Terrill, Samantha Goehri
• American Eldercare: Kim Nelson, Marianne Hall

Kim Clawson, Director, Florida Elder Helpline, Your Aging Resource Center

Answering questions are L-R: Mariangeli Cataluno, Coventry Health Care; Marianne Hall, American Eldercare; Attorney Joseph Karp; Samantha Goehri , Coventry Health Care; and Kathleen Rupp, Sunshine State Health Plan.

Amarilis Fernandez describes the Sunshine State Health Plan.

Karp Law Firm members at the events, L-R: Deborah Karp, Marketing and Media; Deeanna Farrington, MSW, Case Manager: Attorney Genny Bernstein; Attorney Joseph Karp: and Julie McKeon, Executive Assistant

Nancy Partin, Program Operations Administrator, Department of Elder Affairs, CARES offers details about the transition to the new program.

Answering questions are (L-R) Kim Clawson, Director of Elder Helpline; Ronel Antelo, United Health Care; Mariangeli Cataluno, Coventry Health Care; Marianne Hall, American Eldercare; Samantha Goehri, Coventry Health Care; and Kathleen Rupp, Sunshine State Health Plan

Congress takes up Medicare/Medicaid reimbursement - again - for physician-patient discussions of end of life preferences

Remember the "death panel" brouhaha back in 2009? That's what opponents of the proposed Affordable Care Act called the bill's provision to compensate doctors under Medicare and Medicaid for discussing end-of-life preferences in depth with patients. The specter of "death panels" so spooked a large swath of the public that the provision was jettisoned from the final law.

That's too bad. In my experience, clients are not threatened by such discussions. On the contrary, my clients want to take control of their medical destinies, make informed decisions, and make sure their families are at ease with their plans if their families must ever make life-and-death decisions for them. Clients would welcome the opportunity to have a frank, free discussion with their physicians about these most sensitive and personal matters.

Evidently many on Capitol Hill agree. The Wall Street Journal  reports that this week, Senators Mark Warren (D-VA) and Johnny Isakson (R-GA) will introduce a bill that provides Medicare and Medicaid coverage for doctors' time-intensive discussions with critically ill patients regarding end-of-life care. According to the report, both senators have had experiences that fuel an intense personal interest in the proposed legislation. When Senator Warner's mother, Marjorie, developed Alzheimer's Disease, she had not put her wishes in writing. "We didn't know what to do," Warner says. In contrast, Senator Isakson and his family were well prepared for his parents' declining health, thanks to frank discussions his parents had with their doctors and with the family. They had "had terrific quality of life at the end," Isakson recalls.

A bill similar to the Senate bill has already been introduced in the House of Representatives, according to Politico. Rep. Earl Blumenauer (D-OR) and 17 bipartisan co-sponsors have put forward the "Personalize Your Care Act" of 2013, which would amend the Social Security Act to permit Medicare and Medicaid coverage when patients request advance planning discussions with their doctor. The bill would reimburse doctors for time-intensive discussions every five years, or sooner if the patient has a significant change in health status. The proposal also adds on several elements not present in the 2009 legislation, including the requirement that advance health care directives are honored across state lines, and provisions for incorporating end-of-life wishes into electronic medical records. You can read more about HR1173 here, 

Notwithstanding the bipartisan initiative, many legislators remain resistant to dealing with end-of-life issues, considering it to be a political third rail. Even so, I think the issue will inevitably take center stage as voters realize the proposed laws are designed to give citizens more control over their lives, not less. Also, the  Baby Boomers - that huge demographic behemoth that has always liked to do things its own way - will likely push the conversation to the forefront in the near future.

 Continue to check this blog and my website for new developments.

Parents helping adult kids have to take care of themselves, too

A record high percentage of adult children are living at home with their parents, a Pew Research Study has found. In 2012, there were 21.6 million adults ages 18-31 living at home with mom and dad - 36% of that age group. Given the Great Recession from which we have not fully emerged, and record-high levels of student debt, the trend is not surprising. What the study found that is surprising (well, maybe not) is that men are more likely to live with their parents than are women.

Most parents are glad to help out. And I'd venture to say that generally speaking, it's the children, not the parents, who find the situation most onerous. Still, having an adult child living at home can put a financial burden on parents. According to The Wall Street Journal, it costs parents anywhere from $8,000 to $18,000 annually to have an adult child at home.

Eventually the vast majority of our adult children will find a job, will move on to school, move out, build a life. But when it comes to retirement, seniors are on their own. There are no loans to help with retirement! And the reality is that most children will not be as willing to throw open their doors to needy parents as their parents were for them. If you're a parent helping out an adult child, you should not neglect your own financial needs!

Avoid probate, safeguard your family's privacy: Brooke Shields' story

We all value our privacy in life. But what about in death? If you want to keep your loved ones' affairs private, you should look into creating an estate plan that avoids probate.

Privacy is a particularly precious commodity for the rich and the famous. Take actress Brooke Shields, for example. Shields' mother Teri died of Alzheimer's disease in 2012, leaving everything to her daughter. In public court documents related to her mother's will, the actress' New York City home address appears. That detail is a big concern for Shields, who has two young daughters and was stalked for over a decade by an obsessed fan. Shields has petitioned the New York Surrogate Court to strike any reference to her address, stating, “If my actual residence address were disclosed...substantial intrusion on the privacy of myself and my family would result, with the potential for significant disturbance to me and to my minor children who reside with me.” 

A similar situation unfolded just a few weeks ago, when James Gandolfini's will was filed in New York, also revealing the address of his apartment, which he left to his son.

You don't have to be a celebrity to value your and your loved ones' privacy. If this is a concern for you, you will want to look into an estate plan that keeps your estate planning documents from becoming public record. Many Floridians turn to living trusts for this purpose. Consult an experienced Florida estate planning/elder law attorney for assistance.