Guardianship Reform Helps, but Planning Shouldn't Wait

Pennsylvania has implemented a Guardianship Tracking System (GTS), a new web-based system for guardians, court staff, Orphans’ Court clerks and judges to file, manage, track and submit reports. The system integrates statewide guardian information, thereby helping to protect Pennsylvania’s most vulnerable citizens while streamlining and improving the guardianship filing process.  Every little bit helps. One of the unstated benefits of making guardianship reporting easier, is that ease encourages filial and social caregivers to act as guardians. 

Of course, a better plan is to adopt an estate plan incorporating "Aging in Place" strategies, appointing and empowering trusted caregivers (not corporate trustees -banks, financial advisers, or attorneys) and preventing court-appointed guardian control of assets. In addition to making it even easier for filial and social caregivers to act on your behalf, such planning makes court-appointed guardianship more difficult and less lucrative for those who might be interested primarily in financial gain. The National Association to Stop Guardianship Abuse (NASGA) says it best; abusive guardianships have a distinctive pattern: Isolate- Medicate- Liquidate- Drain the Estate.

Guardianship reform helps, and should be encouraged and applauded. Planning, however, shouldn't wait. 

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Click here to proceed directly to the National Association to Stop Guardianship Abuse Blog article.  

Medicaid Applicant Receives Penalty Period Based on Wife's Transfer on Death

A Missouri court of appeals has ruled that a Medicaid applicant is subject to a penalty period based on his wife's transfer on death of his interest in property to a revocable trust. Hallam v. Missouri Department of Social Services (Mo. Ct. App., No. WD81466, Oct. 9, 2018).  The case demonstrates the complexity of estate planning for farmers, and provides an object lesson in the significance of unintended consequences.

Evelyn and Joe Bell were farmers, and their homestead constituted their farm. They  entered into a postnuptial agreement which provided that each spouse had "the power to dispose of their share of the marital assets at their death free of any statutory or other claims of their spouse."  The Bells thereafter each created a limited liability company (LLC),  in which each served as the sole member. On the same date, the couple transferred into each LLC a one-half interest in the real estate and adjoining farmland that had served as their homestead. 

The Operating Agreement for Mrs. Bell's LLC provided that on her death, her member interest in her LLC would be transferred to the trustee of Mrs. Bell's revocable trust. Mr. Bell was neither the trustee of Mrs. Bell's trust, nor was he a beneficiary.  The foregoing events all took place in 2011.  In 2013, Mr. Bell transferred his LLC to Mrs. Bell, who in turn who transferred the LLC to the trust effective upon Mrs. Bell's death.  The Court agreed that the transfer from Mr. Bell to Mrs. Bell is permitted by state and federal law:

"Relevant to this case, [federal law] provides that: An individual shall not be ineligible for medical assistance...to the extent that -- (A) the assets transferred were a home and title to the home was transferred to -- (i) the spouse of such individual[.]"

Mrs. Bell died in January, 2014, her trust was administered and the assets distributed to the beneficiaries, Mrs. Bell's children.  In December, 2014, Mr. Bell entered a nursing home and applied for Medicaid. The state imposed a penalty period, finding Mr. Bell transferred property for less than market value.

Mr. Bell appealed, arguing that Mrs. Bell's transfer on death of the couple's property was not a voluntary disposal of assets by a spouse that would disqualify Mr. Bell from benefits. After all, Mr. Bell could not control his wife's disposition of her property, and Mrs. Bell did not voluntarily transfer the assets to her children, but were transferred as a consequence of her death. The state upheld the penalty period, nonetheless, and Mr. Bell appealed to court.

The Missouri Court of Appeals affirmed the penalty period, holding that Mrs. Bell's transfer on death was a disposition of assets that subjected Mr. Bell to a penalty period. The court concludes that there "can be no meaningful dispute that the instruments executed by Mrs. Bell 'gave away' her assets, albeit in a delayed manner that first required the condition of her death." According to the court, federal Medicaid law requires that the assets in Mrs. Bell's trust that previously belonged to Mr. Bell were to be treated as assets disposed of by Mr. Bell.  Thus, although Mr. Bell was not in control of his wife's disposition, he and his estate, nonetheless, suffered the consequences.  

Taking Trips Outside the Home can Help Prevent Depression in Older Adults

Click here to see the Facebook post with a link to the article. 

Click here to proceed directly to the Consumer Affairs article.

Retiring to a Foreign Country - Americans Lose $100 Million on Tropical Real Estate Says FTC

Click here to see the facebook post, with a link to the article.

Click here to proceed directly to the Wall Street Journal article. 

CMS releases CSRA and Home Equity Limits for 2019

The Centers for Medicare and Medicaid Services (CMS) released the Community Spousal Resource Allowance and Home Equity Limits for 2019.  The official  allowances for 2019 are as follows:

• Minimum Community Spouse Resource Allowance: $25,284;
• Maximum Community Spouse Resource Allowance: $126,420;
• Maximum Monthly Maintenance Needs Allowance: $3,160.50;
• Minimum Monthly Maintenance Needs Allowance:  $2,057.50.

The aforementioned Minimum Monthly Maintenance Needs Allowance is for the lower 48 states; the specific allowance for Alaska is $2,572.50 and for Hawaii is $2,366.25.  The Minimum Monthly Maintenance Needs Allowance is the current allowance until July 1, 2019.

The Home Equity Limits are:

• Minimum: $585,000;
• Maximum: $878,000.

The new figures can be found here.

ProSeniors keeps and maintains a complete list of most limits and allowances for various government programs and benefits available to seniors, which list you will find here.     

Criminals Steal $37 Billion Every Year from the Elderly-- Here's How

Elder fraud is an immense, complicated, and imposing problem, with implications for every aspect of a person's estate, financial, health care, and long term care plan. Effective aging in place planning and post retirement financial planning must include consideration of these risks. It is tragic that criminals take billions from the elderly using telecommunications and the internet, both tools necessary for communication. 

There is an excellent Bloomberg article describing how criminals prey upon the elderly, which article you can find here.  

See the firm's Facebook post here. 

US Law Takes Grand Step to Protect Grandfamilies- Grandparents and Others Rearing Children Of Family Members Receive Support

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In the United States today, children are increasingly being reared and even formally adopted by family members—most often, their grandparents. Many of these grandparents have been caring for their grandchildren as a result of the opioid crisis, taking on unanticipated or unexpected caregiving roles, sometimes even as their own children work through their addictions and treatments.  Given the death and disability associated with the opioid crisis, and the related or unrelated increasing suicide rate, families are increasingly forced by circumstance to make sure that children stay within their birth family and avoid the alternative of the foster care system. 

No wonder; more than half of the children in the child welfare system have endured four or more adverse childhood experiences, leaving them 12 times more likely to have negative health outcomes – substance use disorders, mental health problems, and engaging in aggressive or risky behaviors – than the general child population.  According to the 2017 State of Grandfamilies in America Annual Report, compared to those in care with non-relatives, children cared for by relatives have more stable and safe childhoods and a greater likelihood of having a permanent home. They have better mental and behavioral health, and are more likely to report always feeling loved.  Grandparents and other relatives who step in to care for children play an important role in preventing trauma, which children in the child welfare system experience at starkly higher rates than the general population.

Indeed, it is not only grandparents who are stepping forward to rear the children of parents with substance abuse or other issues: brothers, sisters, aunts, uncles, grandparents, and other extended family members, kinship caregivers, are stepping forward to fill the void created by the death or impairment of a child's parent. But, grandparents are by far the most common to bear the burden; they play the key child-rearing role in the lives of 2.5 million children—that’s 3% of all U.S. children.  All told, 7.8 million children, - that's 10% percent of all U.S. children- are being reared by family members who are not their birth parents.

The number of grandparents who report that they are raising their grandchildren, is reportedly 2.7 million, but it is likely that the actual number is far greater, as many families don't or won't disclose that parent's are unable or unwilling to rear their own children.  Some grandparents quietly assume the role of parent, often without consideration of the financial, legal, or medical challenges they may later encounter. 

This form of kinship care is so prevalent, it has its own name- the grandfamily, a freshly minted moniker born of necessity and tragic circumstance, describing the now common familial sacrifice and commitment.

Kathleen Kelly Halverson, writing for Adoption.com, in an excellent article,  properly characterized the meaning of such sacrifice:

"These grandparents are not just saving their own families: They are literally saving our country as well..."

That is not exaggeration or hyperbole; Generations United, a national nonprofit group, has estimated that grandparents and other relatives who are raising children informally save taxpayers $4 billion each year, but what value can be placed on a single child that is loved, supported, and healthy- physically, mentally, and emotionally- let alone the literally several million children, reared free from impairment, free from the torment of abuse, and able to care for themselves and others?  

And yet, these grandparents and kinship caregivers struggle financially, physically, and emotionally,  and, too often, silently. Grandparents struggle with their own health concerns and their own physical limitations, as they dip into retirement funds to ensure that their grandchildren are properly reared. Some grandparents may not even know that resources and support are available to them.  

The past year has seen the U.S. make a grand step forward in supporting these grandfamilies and kinship caregivers. The Supporting Grandparents Raising Grandchildren Act ("Supporting Grandparents Act"), which cleared the Senate unanimously in June, and was signed into law by President Trump in July, supports these guardian-saviors by creating a federal task force to establish a one-stop shop of resources for grandparents who are raising grandchildren. 

“Grandparents are increasingly coming to the rescue,” when addiction, overdose or other circumstance deprives a child pf parents, said Sen. Susan Collins, R-Maine, who chairs the U.S. Senate Special Committee on Aging. Collins cosponsored the bill with the committee's ranking member, Sen. Bob Casey, D-Pa.

These grandparents are “replacing traumatic pasts with loving and hopeful futures,” Collins said. Stepping up for a second round of parenting, especially when the family is dealing with the fallout of opioid addiction, comes with a barrage of decisions and challenges, such as “delaying retirement, navigating school systems, bridging the generational gap, working through the court system to secure custody and finding mental health services,” said Casey. Grandparents need a one-stop resource that provides contacts and information that will help “in that moment of crisis in that family,” said Casey.

The Supporting Grandparents Act has the backing of 40 advocacy groups for older adults and children, including AARP and the American Academy of Pediatrics.   A federal advisory council will include a grandparent, an older relative raising a child, together with experts from several federal agencies; it is charged with locating established resources across the country, investigating best practices, researching how to most capably rear children, and finding useful information for older relatives rearing and supporting children, with a special focus on those affected by opioid addiction.

Nancy LeaMond, AARP’s executive vice president and chief advocacy and engagement officer, praised Congress for taking action, saying, “[t]he federal advisory council will identify, promote, and disseminate information about this vital support and the resources available to help grandparents create and maintain a stable home environment for their grandchildren so that they can thrive.”

The Supporting Grandparents Act follows passage of the Family First Prevention Services Act ("Family First Act"), which became law in February.   The Family First Act is landmark child welfare law that works from the principle that children do best in families.  The Family First Act addresses an array of services and programs, but specifically provides financial and non-financial support for kinship caregivers, such as grandparents rearing grandchildren.  

The Family First Act provides first time federal reimbursement for prevention services and programs.  Federal child welfare dollars can be used for up to 12 months of services and programs to prevent children from entering foster care by supporting the triad of generations in grandfamilies - children, kinship caregivers and parents. The children qualify for services if they are “candidates” for foster care, meaning at imminent risk of entering foster care and can safely remain at home with parents or with kinship caregivers.  Children whose adoption or guardianship is at risk of disruption or dissolution qualify. 

Kinship caregivers or parents of the children also qualify for services if they are needed to prevent the children’s entry into care. Children and families can receive these services more than once if the child is again identified as a candidate for foster care at a later date.  The prevention services and programs include:

• mental health treatment;
• substance abuse prevention and treatment, and;
• in-home parent skill-based supports.

States, too, receive assistance in the form of federal reimbursement for up to 50% of their expenditures to provide kinship navigator programs that meet certain evidence-based requirements. This federal support is available regardless of whether the children for whom the services are being accessed meet certain income eligibility requirements for Title IV-E foster care funding.

The Family First Act seeks to improve licensing standards for relative foster family homes.  The Secretary of Health and Human Services (HHS) was required to identify a model of family foster home licensing standards by October 1, 2018, which the Secretary dutifully published August 1, 2018, sixty days sooner than required, a fact notable because the speed with which the federal government is working to reform existing law speaks loudly of its commitment to change.  You can, compare and contrast the federal licensing standards with those suggested by advocacy groups, such as the Model Family Foster Home Standards developed by the National Association for Regulatory Administration (NARA), Generations United and the American Bar Association.

By April 1, 2019, each state must report to HHS on the following:

• are the state standards in accord with the model and if not, why not?
• does the state waive non-safety licensing standards for relatives, as allowed by federal law?
• which standards does the state most commonly waive?
• if the state does not waive, why not?
• how are caseworkers trained to use the waiver authority?
• does the state have a process or tools to assist caseworkers in waiving non-safety standards so they can place quickly with relatives?
• what steps are the state taking to improve caseworker training or the process?

The Family First Act does not leave behind those children unfortunate to have no available kinship caregiver.  Under the new law, if children need to come into the custody of the child welfare system, the law encourages the placement of children in foster care in the least restrictive, most family-like settings appropriate to their needs by not allowing the use of federal funds for inappropriate group placements (effective October 1, 2019 although a state may request a delay for up to two years). Federal funds may only be used for a few specific types of group placements, including a qualified residential treatment program (QRTP).  An important component of the appropriate use of QRTPs is the requirement to facilitate and maintain family connections. To be considered such a program, the program must assist and encourage outreach to the child’s family members, including siblings and close family friends known as ”fictive kin,” and the child’s family must be a part of the child’s treatment.  This requirement includes family-based support for at least six months post-discharge. 

As part of the assessment to determine if a QRTP placement is necessary, the placement preferences of the family must be considered, and children must be placed with their siblings unless it is not in their best interest. If the placement preferences of the family are not followed, the reasons must be documented as part of that assessment process.

A QRTP service provider must:

• Be licensed and be accredited by at least one of three federally approved accreditors: The Commission on Accreditation of Rehabilitation Facilities (CARF), Council on Accreditation (COA) or The Joint Commission (formerly JCAHO);
• Use a trauma-informed treatment model;Have registered or licensed nursing staff and other licensed clinical staff, available 24/7, on-site according to the treatment model;
• Demonstrate family engagement and outreach, including siblings, in the child’s treatment;
• Provide discharge planning and family-based aftercare supports for at least six months post-discharge.

The accreditation mandate sets a high bar, but helps ensure the delivery of high-quality care. Organizations that earn accreditation have reached beyond the minimum licensing standards and made a long-term commitment to strong governance, program consistency, outcome measurement and continuous improvement throughout their agencies.

Accreditation also requires organizations to undergo an objective review by an independent accrediting body and signifies that they are effectively managing their resources and enhancing the quality of life for the population served.

The Family First Act also seeks to improves interstate placements, a significant step in an increasingly mobile and diffused society.  The Act expedites interstate placement of children in foster care, adoption or guardianship by requiring states to use an electronic interstate case-processing system by no later than October 2027 for exchanging related data and documents.

Further, the Family First Act extends guaranteed funding for child and family services programs. The Act extends funding for five years (fiscal years 2017-2021) for two critical service programs for children and families in the child welfare system-- the Stephanie Tubbs Jones Child Welfare Services Program and the Promoting Safe and Stable Families Program.  The Act also improves the John H. Chafee Foster Care Independence Program, and extends to age 23 the financial, housing, counseling, employment, education, and other appropriate supports and services to former foster care youth. It further extends eligibility to age 26 for Education and Training Vouchers.

Finally the Family First Act reauthorizes the Adoption and Legal Guardianship Incentive Program for five years.  The Incentive Program allows states to receive incentive payments based on improvements in increasing exits from foster care to adoption or kinship guardianship.  These incentives should encourage and aid in transitioning children to qualified grandparents or kinship caregivers from foster care.

Significant challenges demand significant response.  Fortunately, the federal government has risen to the challenge. 

This article is based upon and largely draws from "Trump Signs Bill to Help Grandparents Raising Kids,"  "Trump Signs The Supporting Grandparents Raising Grandchildren Act Into Law, and those referenced in the body of the article.  This article utilized the Children’s Defense Fund’s detailed summary of the Family First Prevention Services Act of 2016, available at ww.childrensedefense.org, and the Generations United detailed summary of the Act’s grandfamilies’ provisions, available at www.gu.org.