|
NOTES and Updates - Fall
2004
"For man, autumn is a time
of harvest, of gathering together."
Recent changes to the California Probate Code require
County Recorders to record additional documents relating to trusts, including
Affidavits of Change in Trustee and Certifications of Trust. Previously, County
Recorders had refused to record such documents, citing that no authorization
in the code would require such recording. This created procedural issues when
trustees changed by virtue of resignation or incapacity. Using such emergency regulations does not allow adequate public comment prior to issuance of the regulations, creating uncertainty as to the applicability of regulations and frequently leading to lawsuits for clarification. DHS is currently working on comprehensive recovery regulations that will greatly modify the ability of DHS to recover against the estate of a Medi-Cal recipient. DHS had declared that comprehensive recovery regulations would be issued after October 1st of 2004. As of the date of this newsletter, however, those regulations have yet to be issued. These regulations are expected to contain changes regarding recovery claims against annuities, retirement accounts, and personal residences. As DHS issues regulations which allow for additional recovery options, and as additional restrictions regarding transfers of assets are enacted, we expect many changes in planning for Medi-Cal recipients. We will update you on the regulations as they are issued by DHS. Should any regulations be issued prior to our Elder Law seminar, we will discuss those new regulations as part of that seminar. If you have specific questions about the impact these new regulations may have on your personal or a loved one's estate plan, please call us for an appointment. Governor Schwarzenegger signed Assembly Bill 1629 increasing nursing home subsidies, a matter which is of grave concern to both AARP and CANHR (California Advocates for Nursing Home Reform). Mike Moreno, an AARP lobbyist, says his group opposed the bill because it lacks language guaranteeing patient rights or improving patient care. Pat McGinnis, director of CANHR, worries that "there are no penalties for outfits that game the system and put in fraudulent cost reports." Both groups concur with Senator Charles Grassley, Chairman of the Senate Finance Committee, who believes the nursing home inspection system is "just plain broke." He sees the system as "corrupted" by unscrupulous people and feels many quality of care deficiencies are minimized, altered or dismissed. A full copy of the Senator's letter is posted at www.canhr.org. Would that California were immune to these problems, but it is not. Ineffective complaint investigations are of particular concern. One retired state inspector said she "had to fight tooth and nail to get action against facilities." Some California residents can't seem to get complaints investigated at all. Media reports show lack of manpower keeps many DHS (Department of Health Services) district offices from following up promptly on any but the most serious complaints. Since delayed investigations are far less effective, this is a problem, and consumer advocates doubt that AB 1629 will improve nursing home accountability in this regard. Clearly, consumers need to hold the system accountable themselves. Lengthy delays violate state law requiring DHS to begin investigations no more than 10 days after a complaint or in 24 hours if imminent danger of death or serious harm is involved. You can help by contacting Mike Connors at CANHR (415-974-5171) with any systemic difficulties you encounter. Also, be sure to follow up on complaints made to DHS by letting the assigned investigator know you are aware of the time limits set by state law and that you expect compliance. If he or she is unresponsive, the District Administrator for the DHS District Office would be next in line, followed by Brenda Klutz, DHS Deputy Director and Sandra Shewry, DHS Director. Calling California legislators, the long term care ombudsman, legal services, the governor or the media may help shine a light on your situation too. Elder Alert: Scams & Fraud Phony Interhitance Scams Beware of all-too-helpful emails from those claiming to "represent" banks in South Africa, China, and various European countries. These individuals claim to be aware of a large bank account that no one else knows about, whose owner has died unexpectedly. Of course, no heirs can be found, so the writer wants you to pose as an heir in order to split the funds between you. Naturally, you will need to supply your bank account and other personal information. Another variation is that a philanthropist with a large bank account has died and wants to "support your ministry and help to the less-privileged." Again, you must forward personal data so they can file probate documents to release the supposed bequest. Does it sound too good to be true? If so, it is. CitiBank Customer Scam An authentic-looking email arrives stating that identity theft has become a serious problem at CitiBank and asking you to confirm your banking details in order to "safeguard your account." There is even what appears to be an official "link" to the CitiBank web site where you should go to reveal this "mandatory" information. Be wary. Do not comply with this fraud. back to top Medi-Cal Fraud An 80-year-old couple was scammed by a group called "Brooks Bridges Warburton LLC." This outfit advertised in area hospitals about how to protect an estate from the costs of nursing home care. When the husband and wife contacted the group, an agent visited their home and promised that he would invest $125,000.00 of their money in a Family Limited Partnership (FLP) and get them qualified for Medi-Cal. Surprisingly, the couple did get qualified for Medi-Cal, but they received no copies of the documents they had signed. (The copies were "lost in the mail.") The elderly man died several months later. His son called the firm to find out where the money was. Suddenly, no one could be contacted at the place of business. Canceled checks showed that the $125,000.00 went to the "Guardian Income Fund." The only listing found was in New Zealand, and the telephone had been disconnected. What’s more, the company’s status was revoked as of April 2003. Sadly, recovery of these funds seems unlikely. If anyone approaches you with the idea that it will take tens of thousands of dollars to qualify you for Medi-Cal, run (don’t walk!) in the other direction. Even when a scam artist is finished taking your money, you may still not be qualified. Conversely, an experienced elder law attorney can assist you in determining whether you legitimately qualify for Medi-Cal. Of course, we will be happy to answer any questions you might have in that regard. (And do consider attending our Elder Law seminar on November 10th!) On Elderly Drivers Counseling the elderly about when to stop driving can be a difficult proposition. For most of us, driving means independence, and fighting for various freedoms is a hallmark of our country and its people. No one likes to rely on others for transportation, and it is not surprising that seniors often have difficulty recognizing in themselves the signs of readiness for "driving retirement." Nonetheless, according to USA Today, the number of fatal crashes involving drivers over 70 has gone up 20 percent since 1991. With the population rapidly aging, the elderly are overtaking teenagers as the most at-risk group on the road. Families and friends who begin to recognize problems with a loved one’s driving need to be tactful and respectful. Often it is best to consult a neutral third party, such as an elder’s doctor, for thorough testing in order to evaluate a driver’s capacity. In fact, a study by the National Highway Traffic Safety Administration (NHTSA) has found that many family members of impaired drivers do look to doctors for support in this situation, and the American Medical Association (AMA) is responding. A handbook, entitled the Physicians Guide to Assessing and Counseling Older Drivers, is available both online and as a hard copy. Information on the Guide can be obtained at their website (click here). Among other things, the Guide offers counseling strategies for patients at risk for unsafe driving, as well as a table of medical conditions and medications which may affect driving adversely. Recommendations include involving the elder in the decision-making process wherever possible and encouraging him/her to develop a list of alternative transportation options. Of course, family and friends should be sensitive yet firm in supporting the doctor in the event medical limitations are indeed present. It is often helpful to discuss the potential negative consequences of impaired driving, such as the possibility of injuring oneself or others. Economic factors such as car maintenance, gas and oil costs, registration and licensing fees, financing, car depreciation and the like could also be part of the discussion. Most important, of course, is empathy for and validation of a loved one’s feelings and reactions to the prospect of driving retirement. Supportive conversations with other seniors who have ceased to drive frequently provides comfort, but if anger or depression lasts longer than two weeks, counseling is advised. back to top |
||
 | ||
 |
  |
|
