What Is Virginia Doing to Protect the Residents of Assisted Living Communities?

The eviction bill is sponsored by Virginia state senators Lionell Spruill (D) and Ghazala Hashmi (D). The legislation would amend the Virginia code to give assisted living residents the same protections as nursing home residents facing eviction, reports McKnight’s Senior Living’s recent article entitled “Assisted living providers may face new requirements before evicting residents.”

Susan Rowland, Spruill’s chief of staff, told the McKnight’s Business Daily that the legislation is meant to close a loophole in Virginia law that lets assisted living communities evict residents with no legal recourse.

If SB40 becomes law, assisted residents would be provided with certain safeguards from being involuntarily discharged. These include requiring operators to provide a description of the reasons for eviction, such as that the facility no longer can meet the resident’s care needs, behavioral issues or non-payment. Facilities would also need to make reasonable efforts to resolve any issues leading up to the eviction. Residents would need to be given 30 days’ notice before evictions and also be notified of their right to appeal the involuntary discharge.

In addition, according to the legislation, “Prior to involuntarily discharging a resident, the assisted living facility shall provide relocation assistance to the resident and the resident’s representative, including information regarding alternative placement options.”

Amy Hewett, vice president of strategy and communications for the Virginia Health Care Association / Virginia Center for Assisted Living, remarked that the association “appreciated the opportunity to work with the bill patron Sen. Lionell Spruill and advocates to take steps toward ensuring that both residents and providers have an understanding of the involuntary discharge process.”

Dana Parsons, vice president and legislative counsel for LeadingAge Virginia, said the organization “believe[s] this legislation is a positive step forward and will provide housing protections as well as stability and positive support to aging Virginians.”

Assisted living communities in the commonwealth are deemed non-medical in nature. As a result, they are not subject to the same regulations as skilled nursing facilities. Assisted living residents also are not covered by the commonwealth’s Landlord and Tenant Act. Geriatric homes are specifically excluded from eviction protections afforded other renters, “as these tenancies and occupancies are not residential tenancies under this chapter.”

Residents evicted from the state’s assisted living communities could only go to the Office of the State Long-Term Care Ombudsman, which could attempt to mediate disputes. However, there was no requirement for assisted living communities to cooperate.

Reference: McKnight’s Senior Living (March 10, 2022) “Assisted living providers may face new requirements before evicting residents”

Suggested Key Terms: Elder Law Attorney, Assisted Living

Is Advance Care Planning a Benefit to Seniors?

Advance care planning (ACP) is an ongoing discussion that involves shared decision-making to clarify and document an individual’s wishes, preferences and goals regarding their medical care. This is extremely important to making certain that they get the medical care they want, if they become incapacitated and unable to make their own decisions. Despite the importance of ACP, most Americans don’t have their medical wishes documented, according to Medical Life Sciences News’ recent article entitled “Comprehensive approach may promote Advance Care Planning for elderly adults.”

In the pandemic, too many families exhausted themselves attempting to address this issue, agonizing over what their loved one might have chosen for their care if they had been given the chance.

Dr. Angelo Volandes, MD, MPH, physician and researcher, Division of General Internal Medicine at Massachusetts General Hospital, and colleagues started the Advance Care Planning: Communicating with Outpatients for Vital Informed Decisions (ACP-COVID) pragmatic trial. This experiment was designed to see if ACP participation during the pandemic would increase following implementation of video decision aids and clinician communication skills training. They also looked at how these interventions would affect ACP documentation among patients from ethnic and racial minority groups, specifically African Americans and Hispanics.

The trial included a large, diverse patient population aged 65+ from 22 outpatient clinics at Northwell Health, the largest healthcare system in New York State. ACP documentation from three six-month time periods was compared:

Pre-COVID-19
The first wave of COVID-19; and
An intervention period.

The findings showed that ACP documentation was significantly greater among all groups during the intervention period, with African American and Hispanic patients showing the most significant increases.

“The stark disparity in COVID-related outcomes for African American and Hispanic patients highlights a reality already known by many: our healthcare system routinely fails to meet the needs of minority patients. No one intervention or initiative is going to correct all those failings though advance care planning, through engaging and empowering patients, is one of the most effective, immediate ways to address disparities in care,” adds Volandes, who is also an Associate Professor of Medicine at Harvard Medical School.

“Fundamentally, advance care planning aims to empower patients. The results of our study demonstrate the importance of meeting patients where they are,” adds Volandes. “Whether that means providing information in their native language or sharing educational material via text rather than a patient portal, if advance care planning is to be about the patient and we need to find ways to ensure that they feel they have the knowledge and ability to make decisions alongside their clinicians when they deem the time is right. COVID-19 has made ACP more important than ever, and especially in communities that have been hardest hit by the pandemic.”

Reference: Medical Life Sciences News (Feb. 28, 2022) “Comprehensive approach may promote Advance Care Planning for elderly adults”

Must I Sell Parent’s Home if They Move to a Nursing Facility?

If a parent is transferring to a nursing home, you may ask if her home must be sold.

It is common in a parent’s later years to have the parent and an adult child on the deed, with a line of credit on the house. As a result, there’s very little equity.

Seniors Matter’s recent article entitled “If my mom moves to a nursing home, does her home need to be sold?” says that if your mother has assets in her name, but not enough resources to pay for an extended nursing home stay, this can add another level of complexity.

If your mother has long-term care insurance or a life insurance policy with a nursing home rider, these can help cover the costs.

However, if your mom will rely on state aid, through Medicaid, she will need to qualify for coverage based on her income and assets.

Medicaid income and asset limits are low—and vary by state. Homes are usually excluded from the asset limits for qualification purposes. That is because most states’ Medicaid programs will not count a nursing home resident’s home as an asset when calculating an applicant’s eligibility for Medicaid, provided the resident intends to return home

However, a home may come into play later on because states eventually attempt to recover their costs of providing care. If a parent stays a year-and-a-half in a nursing home—the typical stay for women— when her home is sold, the state will make a claim for a share of the home’s sales proceeds.

Many seniors use an irrevocable trust to avoid this “asset recovery.”

Trusts can be expensive to create and require the help of an experienced elder law attorney. As a result, in some cases, this may not be an option. If there’s not enough equity left after the sale, some states also pursue other assets, such as bank accounts, to satisfy their nursing home expense claims.

An adult child selling the home right before the parent goes into a nursing home would also not avoid the state trying to recover its costs. This because Medicaid has a look-back period for asset transfers occurring within five years.

There are some exceptions. For example, if an adult child lived with their parent in the house as her caregiver prior to her being placed in a nursing home. However, there are other requirements.

Talk to elder law attorney on the best way to go, based on state law and other specific factors.

Reference: Seniors Matter (Feb. 25, 2022) “If my mom moves to a nursing home, does her home need to be sold?”

What Did I Hear about Over-the-Counter Hearing Aids?

The proposed rule comes four years after Congress passed a law mandating that the FDA to establish a category of over-the-counter hearing aids. The agency ran through its August 2020 deadline for doing so, but now has finalized it after a 90-day public commentary period. The FDA’s updated guidelines will create a new category of devices requiring neither a prescription nor a fitting by an audiologist. These will be sold online and at retail stores for adults with mild to moderate hearing loss.

AARP’s recent article entitled “FDA Clears Way for Over-the-Counter Hearing Aids” reports that right now those seeking hearing aids usually must see a health care professional for testing and fitting — a process that can be both costly and lengthy.

“Hearing loss has a profound impact on daily communication, social interaction and the overall health and quality of life for millions of Americans,” Acting FDA Commissioner Janet Woodcock, M.D., said in a statement. “The FDA’s proposed rule represents a significant step toward helping ensure that adults with mild to moderate hearing loss have improved access to more affordable and innovative product options.”

About 15% of U.S. adults (37.5 million) report trouble hearing, according to the National Institute on Deafness and Other Communication Disorders, and fewer than 1 in 3 adults aged 70 and older with hearing loss who could benefit from hearing aids have ever used them. The reason most often cited is the cost. Hearing aids currently cost between $2,000 and $6,000 a pair and are not covered by Medicare or most insurance. The proposed rule is expected to lead to lower prices for consumers, by lowering barriers to entry for hearing aid makers.

The only over-the-counter options now available have been personal sound-amplification products (PSAPs), which increase the volume of all the sounds in a given environment, and which typically cost a hundred dollars a pair.

“Reducing health care costs for everyone in America is a top priority,” Health and Human Services Secretary Xavier Becerra said in a statement. “Today’s move by FDA takes us one step closer to the goal of making hearing aids more accessible and affordable for the tens of millions of people who experience mild to moderate hearing loss.”

Reference: AARP (Oct. 19, 2021) “FDA Clears Way for Over-the-Counter Hearing Aids”

How to Maintain Mobility while Getting Older

About 27.5% of people globally do not get enough physical activity, according to a 2018 study in The Lancet Global Health of nearly two million people.

Sufficient physical activity was defined as at least 150 minutes of moderate-intensity or 75 minutes of vigorous-intensity physical activity per week.

Livestrong’s recent article entitled “Why Your Mobility Worsens As You Age, and What to Do About It” examines the habits that experts want you to apply:

Remain Active. Try to build activity into your day and keep moving. One of the simplest and best exercises is walking. Start small and work up to longer sessions, until you reach 30 minutes a day. If you do not have the time for a full walk some days, do what you can because every bit counts.
Mix Up Your Moves. While it is great to find a workout you like, doing the exact same exercises every day is not ideal for joint mobility. It is better to do exercise sessions that look different on different days of the week. You can and should repeat your workouts from week to week. Experts say a combination of activities, such as strength training, cycling, running and yoga, will move your joints in all the ways possible.
Take Standing Breaks. If you have a desk job, you are spending a lot of time at your desk. A way to counteract being sedentary at your desk is to move frequently. If you are at a desk job, you can stand up on your feet and/or walk once an hour for five minutes. This sitting engages large skeletal muscles and, when consistently performed throughout the day, activates thousands of muscular contractions, the researchers note. Standing up more — no matter your age — is important, even if you have done a workout that day.
Stretch! Stretching that targets your shoulders, spine, hips, and calves can fight chronic stiffness that plays into mobility losses in older adults. Stretching — both with static (bend and hold) stretches as well as dynamic (flowy) ones — is a super opportunity to move your joints in ways they otherwise might not all too regularly. Many yoga workouts also include a flexibility and mobility component.

However you decide to bend and stretch, concentrate on challenging yourself, but do this without pain.

Pushing yourself too hard into stretches may damage your joints and contribute to injury.

Remember that the goal is to feel a gentle, pleasant stretch in your muscles. If it does not feel good, listen to your body and pull back a bit or totally avoid that stretch.

Reference: Livestrong (Jan. 20, 2022) “Why Your Mobility Worsens As You Age, and What to Do About It”

What’s Elder Law and Do I Need It?

Yahoo News says in its recent article entitled “What Is Elder Law?” that the growing number of elderly in the U.S. has created a need for lawyers trained to serve clients with the distinct needs of seniors.

The National Elder Law Foundation defines elder law as “the legal practice of counseling and representing older persons and persons with special needs, their representatives about the legal aspects of health and long-term care planning, public benefits, surrogate decision-making, legal capacity, the conservation, disposition and administration of estates and the implementation of their decisions concerning such matters, giving due consideration to the applicable tax consequences of the action, or the need for more sophisticated tax expertise.”

The goal of elder law is to ensure that the elderly client’s wishes are honored. It also seeks to protect an elderly client from abuse, neglect and any illegal or unethical violation of their plans and preferences.

Baby boomers, the largest generation in history, have entered retirement age in recent years. Roughly 17% of the country is now over the age of 65. The Census estimates that about one out of every five Americans will be elderly by 2040.

Today’s asset management concerns are much sophisticated and consequential than those of the past. Medical care has not only managed to extend life and physical ability but has itself also grown more sophisticated. Let’s look at some of the most common elder law topics:

Estate Planning. This is an area of law that governs how to manage your assets after death. The term “estate” refers to all of your assets and debts, once you have passed. When a person dies, their estate is everything they own and owe. The estate’s debts are then paid from its assets and anything remaining is distributed among your heirs.

Another part of estate planning in elder law concerns powers of attorney. This may arise as a voluntary form of conservatorship. This power can be limited, such as assigning your accountant the authority to file your taxes on your behalf. It can also be very broad, such as assigning a family member the authority to make medical decisions on your behalf while you are unconscious. A power of attorney can also allow a trusted agent to purchase and sell property, sign contracts and other tasks on your behalf.

Disability and Conservatorship. As you grow older, your body or mind may fail. It is a condition known as incapacitation and legally defined as when an individual is either physically unable to express their wishes (such as being unconscious) or mentally unable to understand the nature and quality of their actions. If this happens, you need someone to help you with activities of daily living. Declaring someone mentally unfit, or mentally incapacitated, is a complicated legal and medical issue. If a physician and the court agree that a person cannot take care of themselves, a third party is placed in charge of their affairs. This is known as a conservatorship or guardianship. In most cases, the conservator will have broad authority over the adult’s financial, medical and personal life.

Government programs. Everyone over 65 will, most likely, interact with Medicare. This program provides no- or low-cost healthcare. Social Security is the retirement benefits program. For seniors, understanding how these programs work is critical.

Healthcare. As we get older, health care is an increasingly important part of our financial and personal life. Elder law can entail helping a senior understand their rights and responsibilities when it comes to healthcare, such as long-term care planning and transitioning to a long-term care facility.

Reference: Yahoo News (Jan. 26, 2020) “What Is Elder Law?”

What Is Elder Law?

WAGM’s recent article entitled “A Closer Look at Elder Law“ takes a look at what goes into estate planning and elder law.

Wills and estate planning may not be the most exciting things to talk about. However, in this day and age, they can be one of the most vital tools to ensure your wishes are carried out after you’re gone.

People often don’t know what they should do, or what direction they should take.

The earlier you get going and consider your senior years, the better off you’re going to be. For many, it seems to be around 55 when it comes to starting to think about long term care issues.

However, you can start your homework long before that.

Elder law attorneys focus their practice on issues that concern older people. However, it’s not exclusively for older people, since these lawyers counsel other family members of the elderly about their concerns.

A big concern for many families is how do I get started and how much planning do I have to do ahead of time?

If you’re talking about an estate plan, what’s stored just in your head is usually enough preparation to get the ball rolling and speak with an experienced estate planning or elder law attorney.

They can create an estate plan that may consists of a basic will, a financial power of attorney, a medical power of attorney and a living will.

For long term care planning, people will frequently wait too long to start their preparations, and they’re faced with a crisis. That can entail finding care for a loved one immediately, either at home or in a facility, such as an assisted living home or nursing home. Waiting until a crisis also makes it harder to find specific information about financial holdings.

Some people also have concerns about the estate or death taxes with which their families may be saddled with after they pass away. For the most part, that’s not an issue because the federal estate tax only applies if your estate is worth more than $12.06 million in 2022. However, you should know that a number of states have their own estate tax. This includes Connecticut, Hawaii, Illinois, Maine, Massachusetts, Minnesota, New York, Oregon, Rhode Island, Vermont and Washington, plus Washington, D.C.

Iowa, Kentucky, Nebraska, New Jersey, and Pennsylvania have only an inheritance tax, which is a tax on what you receive as the beneficiary of an estate. Maryland has both.

Therefore, the first thing to do is to recognize that we have two stages. The first is where we may need care during life, and the second is to distribute our assets after death. Make certain that you have both in place.

Reference: WAGM (Dec. 8, 2021) “A Closer Look at Elder Law“

Can a Trust Be Created to Protect a Pet?

One of the goals of estate planning is to care for loved ones, particularly those who depend on us for care after we have passed on. Wills, trusts, life insurance and beneficiary designations are all used to provide support to people—but what about pets? There is something you can do to protect your furry companions, says a recent article from The Sentinel, “Elder Care: Estate planning for your furry friends.”

We love our pets, to the tune of $103.6 billion in expenditures in 2020, including everything from pet food, toys, bedding, veterinary care, grooming, training and even Renaissance style portraits of pets. Scientific studies have proven the emotional and physical advantages pet ownership confers, not to mention the unconditional love pets bring to the household. So why not protect your pets, as well as other family members?

Many people rely on informal agreements with good friends or family members to take care of Fluffy or Spice, if the owner dies or becomes sick to take care of their pet. Here’s the problem: these informal agreements are not binding. Even if you’ve left a certain sum of money to a person in your will and ask it to be used solely for the care and well-being of your pet, it’s not enforceable.

We know all things change. What if your chosen pet caretaker has a child or a new romance with someone with a deathly allergy to pet dander? Or if their pet, who always used to play well during your visits, won’t tolerate your beloved pet as a housemate?

The informal agreement won’t hold the person accountable, and the funds may be spent elsewhere.

A better option is to use a pet trust. These have been recognized in all fifty states as a lawful way to provide for your animal companion’s needs. A pet trust can be created to provide for your pet during your lifetime, as well as after you have passed, allowing for continuity of care if you become incapacitated and need someone else to have the resources and guidance to care for your pet.

A pet trust is a legal document, prepared by an estate planning attorney and usually includes financial accounts in the name of the trust. Note the pet does not own the trust (animals may not own property), nor do you as the creator of the trust (the grantor). The trust is a legal entity, managed by the trustee.

A few of the things you’ll need to consider before having a pet trust created:

Who is to be the pet’s guardian? Have more than one person in mind, in case the primary pet guardian cannot serve or changes their mind.

If all of your guardians end up unable or unwilling to serve, name a no-kill animal shelter or rescue organization to take your pet. They may require you to plan in advance to cover the cost of caring for your pet. Larger organizations may have a process for a charitable remainder trust (CRT) as part of this type of arrangement.

Give details about pet preferences. If they are AKC registered, use their formal name as well as their regular name. People often fail to use the correct name in legal documents, even for humans, which can lead to legal challenges.

Do you want the same person to serve as trustee, managing funds for the pet, as the guardian? This is a similar decision for naming a guardian for minor children. Sometimes the person who is wonderful with care, is not so skilled at handling finances.

Finally, include instructions about what should happen to the money left after the pet passes. It may be used as a thank you to the person who cared for your beloved companion, or a gift to an animal organization.

Reference: The Sentinel (Jan. 7, 2022) “Elder Care: Estate planning for your furry friends.”

Do We Know the Impact That Omicron Variant has Impact on Seniors?

Most research shows that the omicron variant produces mild symptoms among fully vaccinated adults and children. The Deseret News’ recent article entitled “It’s too early to see how the omicron variant affects the elderly” reports that thus far, anecdotal data and case reports suggest the omicron variant creates severe COVID-19 symptoms and hospitalizations in unvaccinated adults and unvaccinated children.

Dr. Abdi Mahamud, the WHO’s incident manager for COVID-19, said it’s still unknown exactly how the omicron variant will affect the elderly, both vaccinated and unvaccinated. It could be similar to vaccinated adults, by producing mild symptoms. However, it’s not clear so far.

“We all want this disease to be milder, but the population it affected so far is the younger. How it behaves in the elderly population, the vulnerable — we don’t know yet,” Mahamud said

“It’s too early to determine,” Mahamud said. “We’re optimistic, but I think we shouldn’t over-interpret the data coming from South Africa.”

Evidence currently suggests that the variant offers symptoms similar to the common cold. Experts still recommend that everyone receive the COVID-19 vaccine and booster shots, as well as a COVID-19 test, if symptoms develop.

In addition, The Kansas City Star reports that doctors at the University of Kansas Health System say that the highly contagious omicron variant poses a risk to senior citizens in the Kansas City area and beyond. They echo the WHO’s advice to get a booster shot.

They say it’s especially critical for older adults to avoid the worst effects of the virus.

“[Seniors] are going to be the folks who struggle the most with omicron because their immune systems may not have the same memory, they may not have the same ability to respond back,” said Dr. Steven Stites, chief medical officer at the University of Kansas Health System at a briefing on Wednesday. “So omicron can be especially a threat.”

In December, the New York Times reported that one in every 100 of the nation’s seniors has died of COVID-19. Despite being one of the most vaccinated age groups, adults 65+ comprise roughly 75% of all pandemic deaths in the U.S.

“That is a staggering thing to say out loud as someone who has practiced medicine for 35 years,” said the University of Kansas’ Stites.

Reference: Deseret News (Dec. 30, 2021) “It’s too early to see how the omicron variant affects the elderly”

How Do I Hire a Caregiver from an Agency?

Part One of AARP’s recent article entitled “How to Hire a Caregiver” explains that when you have a list of promising agencies, you should schedule a consultation.

It doesn’t matter if your family member is eligible for Medicare, Medicare’s Home Health Compare can be a terrific tool for finding and researching home health agencies in your area.

It provides detailed information on what services they provide and how patients rate them.

Working with an agency has its pros and cons. The pluses include the following:

Background checks. Caregivers must pass a background check.
Experienced caregivers. Agencies are likely to have a number of caregivers who cared for other seniors with the illness or condition affecting your loved one.
Backup care. If the primary aide is sick or doesn’t work out, an agency typically can quickly find a replacement.
Liability protection in the event that a caregiver is injured while at the home.
No paperwork. The agency takes a fee, pays the aide and does the payroll and taxes.

Here are some of the corresponding minuses of working with an agency:

Greater expense. You’ll pay more for an agency-provided caregiver.
Little choice. The agency chooses the worker, and he or she may not fit well with you or your family member.
Negotiation is limited, and individuals are generally more flexible about duties, hours and overtime than agencies.
There are agencies that don’t permit a part-time schedule.

In addition, you can contact an experienced elder law attorney and ask for recommendations.

Reference: AARP (Sep. 27, 2021) “How to Hire a Caregiver”

Estate Planning Blog Articles

Estate & Business Planning Law Firm Serving the Providence & Cranston, RI Areas

What Is Virginia Doing to Protect the Residents of Assisted Living Communities?

Is Advance Care Planning a Benefit to Seniors?

Must I Sell Parent’s Home if They Move to a Nursing Facility?

What Did I Hear about Over-the-Counter Hearing Aids?

How to Maintain Mobility while Getting Older

What Is Elder Law?

Can a Trust Be Created to Protect a Pet?

Do We Know the Impact That Omicron Variant has Impact on Seniors?

How Do I Hire a Caregiver from an Agency?

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What Is Virginia Doing to Protect the Residents of Assisted Living Communities?

Is Advance Care Planning a Benefit to Seniors?

Must I Sell Parent’s Home if They Move to a Nursing Facility?

What Did I Hear about Over-the-Counter Hearing Aids?

How to Maintain Mobility while Getting Older

What Is Elder Law?

Can a Trust Be Created to Protect a Pet?

Do We Know the Impact That Omicron Variant has Impact on Seniors?

How Do I Hire a Caregiver from an Agency?

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