Developing an "Aging in Place" Guidebook for Your Final Years

Although it is difficult for seniors to plan for their final years, it is foreseeable that a senior may confront some health care issues. According to an article in Kaiser Health News, "A Playbook For Managing Problems In The Last Chapter Of Your Life," there is an interesting website," which helps older adults plan for predictable problems.  The website offers a "guidebook" for the final years.  

 “Many people plan for retirement,” the energetic physician explained in her office close to Lake Michigan. “They complete a will, assign powers of attorney, pick out a funeral home, and they think they’re done.”...What doesn’t get addressed is how older adults will continue living at home if health-related concerns compromise their independence." The focus isn't on end of life planning, according to the article, it's the time before. "Investigators wanted to know which events might make it difficult for people to remain at home. Seniors named five: being hospitalized, falling, developing dementia, having a spouse fall ill or die, and not being able to keep up their homes."

The result of the work is an interactive website that deals with issues such as falls, hospitalization, dementia, finances, and conversations. The website offers that "Plan Your Lifespan will help you learn valuable information and provide you with an easy-to-use tool that you can fill in with your plans, make updates as needed, and easily share it with family and friends." 

Account Transcripts Can Function As Estate Tax Closing Letters

On Jan. 6, the IRS announced that executors, probate courts, state tax departments, and others who rely on estate tax closing letters for confirmation that the IRS has closed its examination of an estate tax return can rely on an account transcript issued by the IRS in place of an estate tax closing letter (Notice 2017-12).

An estate tax closing letter confirms that the IRS has accepted the estate tax return, either as filed or after an IRS adjustment that the estate has agreed to, and the receipt of the letter generally indicates that the estate tax return examination has been closed.

The IRS had issued a closing letter for every estate tax return filed, except for those returns filed only for the purpose of electing portability under Sec. 2010(c)(5)(A) when the portability election was denied. However, since June 1, 2015, the IRS has issued estate tax closing letters only when the estate requests one, and that request must be made at least four months after the estate tax return is filed. Estates and authorized representatives can request an estate tax closing letter by calling the IRS at 866-699-4083.

Because it no longer automatically issues an estate tax closing letter, the IRS has announced that an account transcript can substitute for a closing letter (and is available at no charge). Data in an account transcript include the return-received date, payment history, refund history, penalties and interest assessed, balance due, and the date the examination was closed. According to the IRS if an account transcript includes a transaction code 421 and the explanation "Closed examination of tax return," this means that the Service has closed its examination of the return, and this account transcript can serve as the functional equivalent of an estate tax closing letter.

Estates and their authorized representatives can request an account transcript by filing Form 4506-T, Request for Transcript of Tax Return. The IRS's online Transcript Delivery Service is not available for this purpose; Forms 4506-T must be mailed or faxed to the IRS. The AICPA Trust, Estate & Gift Tax Technical Resource Panel continues to discuss the issue of the unavailability of online estate tax return account transcripts with the IRS.

The IRS's notice comes almost one year after Troy Lewis, CPA, then the chair of the AICPA Tax Executive Committee, sent a letter on behalf of the AICPA to the IRS requesting that the Service formally announce its policy regarding estate tax closing letters and that the IRS consider providing closing letters (and not just account transcripts) through its Transcript Delivery Service (the letter is available at www.aicpa.org). The AICPA also requested the IRS revise Form 706, U.S. Estate (and Generation-Skipping Transfer) Tax Return, to add a box to check to request a closing letter, or allow estates to request a closing letter by adding a handwritten request on top of the first page of the Form 706 or attaching a closing letter request to the Form 706 when it is filed.

- See more here. 

Nursing Homes Cannot Hold Residents' Family Members Who Signed Admission Agreements Personally Responsible for Cost

Courts continue to protect family members of nursing home residents from efforts by institutions to hold family members personally responsible for residents' expense.  These actions are becoming more prevalent as States tighten Medicaid restrictions, leaving more residents with outstanding obligations to the nursing home.  

An Ohio appellate court recently reversed the decision of a trial holding that a son is not personally liable for breach of contract after his father was discharged from a nursing home for non-payment even though the son breached his duty to his father as agent under a power of attorney. Extendicare Health Services v. Dunkerton (Ohio Ct. App., 11th Dist., No. 2015-P-0004, Feb. 6, 2017).

Herbert Dunkerton entered a nursing home after he broke his leg. His son, Michael, signed the admission agreement as his agent under a power of attorney. After Herbert's Medicare coverage was terminated, the nursing home asked that Michael apply for Medicaid on his father's behalf. Michael never applied for Medicaid, and the nursing home eventually discharged Herbert for nonpayment.

The nursing home sued Michael for breach of contract and fraudulent conveyance of Herbert's funds. The trial court ruled that Michael breached his duty as his father’s attorney-in-fact when he refused to apply for Medicaid for his father and entered judgment in the amount of $25,228.43. Michael appealed, arguing that he was not a guarantor of his father's debt.

The Ohio Court of Appeals, Eleventh District, reversed, holding that even though Michael breached his duty as attorney-in-fact, Michael did not breach the admissions agreements with the nursing home. According to the court, Michael "signed the admission agreement and the payor confirmation as his father’s attorney-in-fact, and neither document provides that appellant was Herbert’s voluntary guarantor," so Michael was not responsible for his father's debt pursuant to these agreements. The court notes that under state law an attorney-in-fact can be personally liable under certain circumstances, but the nursing home did not raise the state law in its complaint.


For the full text of this decision, go here.

A North Carolina appellate court recently dismissed a breach of contract lawsuit against a nursing home resident's daughter even though the daughter signed the admission agreement on the grounds that the resident was named as representative in the agreement. Wrightsville Health Holdings, LLC v. Buckner (N.C. Ct. App., No. COA16-726, Feb. 21, 2017).

When Sharon Buckner entered a nursing home, her daughter, Melissa, signed the admission agreement on her behalf. The agreement stated that Sharon was the "resident" and the "representative," but Melissa signed the agreement and initialed the portion stating that the representative agreed to personally guarantee payment in the event the resident's Medicaid application was denied. The nursing home demanded that Melissa pay Sharon's unpaid bill.

After Melissa refused to pay, the nursing home sued her for breach of contract. Melissa filed a motion to dismiss, and the trial court granted the motion. The nursing home appealed.

The North Carolina Court of Appeals affirmed, holding that Melissa was not liable for breach of contract. The court ruled that because Sharon is named as resident and representative under the admission agreement, Melissa's signature at the bottom of the document "must be read as" Melissa signing on behalf of Sharon and "her signature and initials on the document merely obligated her mother to comply with the terms of the Admission Agreement."

For the full text of this decision, go here.  

Both cases underscore the importance of family members distinguishing their role as "agent" or "attorney-in-fact" when signing nursing home admissions agreements. 

Institutional Care: America's Most Vulnerable Seniors Raped and Sexually Abused

The headline alone is nauseating.  "SICK, DYING AND RAPED IN AMERICA'S NURSING HOMES," screams the headline of the recent CNN report detailing the incidence of sexual assaults in America's nursing homes, and the indifference of the government and regulators to the epidemic of violence visiting the most vulnerable in America's nursing homes. The facts elicited by CNN reporters in individual cases sicken and disturb. 

That such a story even exists is maddening.  More than 16,000 cases of sexual abuse have been reported in nursing homes and assisted living communities since 2000, according to the CNN report.  But the figures do not tell the complete story.  They don't even come close. The reason is that the government does not specifically track sexual abuse.  Despite the frequency, and indeed, the devastating impact upon victims and their families, state and federal government simply does not track or keep statistics of sexual assault.  CNN explains: 

Despite the litany of abuses detailed in government reports, there is no comprehensive, national data on how many cases of sexual abuse have been reported in facilities housing the elderly.

State health investigators examine all types of abuse reported at nursing homes and assisted living facilities, whether reported by the facilities or flagged by complaints to the state from witnesses, family members or victims. In the case of nursing homes, state officials typically conduct these investigations, as well as routine inspections, on behalf of the federal Centers for Medicare & Medicaid Services (CMS), which regulates the more than 15,000 facilities that receive government reimbursements that pay for many residents' care. Both state health agencies and the federal government then use the information to rate facilities and issue financial penalties for the worst offenders.

*          *         * 

CNN surveyed the health departments and other agencies that oversee long-term care facilities in all 50 states. Of the states that could provide at least some data, the responses varied widely. 

Illinois, for example, said 386 allegations of sexual abuse of nursing home residents had been recorded since 2013, 201 of which involved a caretaker. Hawaii said eight allegations of sexual abuse were investigated between 2011 and 2015 -- five of which involved a caregiver. And when states provided a further breakdown of how many allegations had been substantiated, the results demonstrate just how few accusations end up being proven -- whether it's because of the extreme hurdles posed by aging victims, the destruction of evidence, or half-hearted investigations by facilities and regulators.

Of the 386 cases in Illinois, 59 were considered substantiated. And in Texas, 11 of 251 sexual complaints in the 2015 fiscal year were substantiated. Wisconsin said it didn't have a single substantiated report of abuse in the last five years.

But most states could not say how frequently abuse investigations involved sexual allegations, often stating that sex abuse allegations are not categorized separately from other forms of abuse.

The federal government doesn't specifically track all sexual allegations either.

The reported figure comes from federal data maintained by the U.S. Department of Health and Human Services' Administration for Community Living (ACL), the cable network said, noting that ACL officials said that it includes only cases that involved state long-term ombudsmen.

To arrive at the figure reported, CNN reviewed civil and criminal court documents, state health investigations and CMS information (which included data only on nursing homes), and also interviewed experts, regulators and the families of victims. Although the investigation focused on nursing homes it also addressed assisted living communities, singling out two specific cases.

In one such case, a former cook at a Louisiana assisted living community,  was indicted and charged with first-degree rape of a resident. An executive at the community has also been charged for  failing to report abuse of adults and obstruction of justice, a charge she and the community that hired her denies.  

CNN also cited a 2013 case in Minnesota in which an 89-year-old assisted living resident with dementia was transferred to the mental health ward of a local hospital after she said she had been raped. A certified nursing assistant said he had consensual sex with the resident, and a director at the community believed him, according to CNN.

Most of the report focused on the abuse in nursing homes.  Before reciting specific, repeated, and heart-wrenching details of case after case, the news organizations made a stark and horrific assessment of its findings:

The unthinkable is happening at facilities throughout the country: Vulnerable seniors are being raped and sexually abused by the very people paid to care for them.

It's impossible to know just how many victims are out there. But through an exclusive analysis of state and federal data and interviews with experts, regulators and the families of victims, CNN has found that this little-discussed issue is more widespread than anyone would imagine.

Even more disturbing: In many cases, nursing homes and the government officials who oversee them are doing little -- or nothing -- to stop it.  

Sometimes pure -- and even willful -- negligence is at work. In other instances, nursing home employees and administrators are hamstrung in their efforts to protect victims who can't remember exactly what happened to them or even identify their perpetrators.

In cases reviewed by CNN, victims and their families were failed at every stage. Nursing homes were slow to investigate and report allegations because of a reluctance to believe the accusations -- or a desire to hide them. Police viewed the claims as unlikely at the outset, dismissing potential victims because of failing memories or jumbled allegations. And because of the high bar set for substantiating abuse, state regulators failed to flag patterns of repeated allegations against a single caregiver.

It's these systemic failures that make it especially hard for victims to get justice -- and even easier for perpetrators to get away with their crimes.

According to the report, perpetrators get away with their crimes in too many instances, sometimes through the intentional or negligent handling of the nursing homes themselves. Some perpetrators are first reported by other employees for assaults upon them, causing the nursing home to treat the issue as a labor matter, leaving vulnerable residents under the perpetrator's care. If you want to read more about the specific cases, go here.  The news network recommended that facility owners and operators investigate all incidents, preserve evidence, train employees on reporting practices, and employ sufficient staff to enable proper supervision of workers.

If you are a senior, a family member of a senior, or a caregiver, advocate, or fiduciary for a senior, it is imperative that you evaluate carefully institutional care.  Sexual abuse is only one of many risk factors about which you should be aware. This blog has included articles detailing many of these risk factors, warning that institutional care should be a last resort, and not an ordinary health care option as it is utilized by Medicare, Medicaid, and the current health care system.  These articles include the following:  

• COPD Patients Discharged to a Skilled Nursing Have Two Times the Risk of Death Within Year Compared to Those Who Go Home
• One-Third of Nursing Home Residents Injured or Killed In Treatment
• Hapatitis Infection Risk in Nursing Homes Up 50%; Infection Risk Across the Board Increases
• Resident's Death Caused By Nursing Home Failing to Follow Advanced Directives Requesting CPR
• Nursing Home Involvement in Patient's Death Object Lesson on Aging-in-Place Planning
• Nursing Home Worker Faces Homicide Charges in Violent Death of Resident
• Paramedics Often Obstructed, Provided Insufficient Information On Nursing Home Calls
• Hospice Patients in SNFs Less Likely to be Visited by Professional Staff the Last Two Days of Life
• Non-Profit Long-Term Care Safer than For-Profit
• Nursing Home Residents Twice as Likely to Suffer Fractures
• Habits Are Hard to Break: Nursing Homes Habitually Violate Federal Standards Year After Year
• CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations
• New Controversial Sign-Off Rule Increases Burdens On Skilled Nursing Facilities- Threatens Transfer To Hospitals
• Don't Let Institutions Plan for You: Medicaid-Eligible Nursing Home Resident Stuck With Costs of Private-Pay Room
• Many Skilled Care Providers Still Unaware of New Medicare Rules Permitting Chronic Condition Care
• Ohio Ranks Poorly on Long-Term Care Services Scorecard
• Hospice Costs Medicare Less Notwithstanding that Hospice Patients Live Longer

You should ensure that you, or those for whom you are or may be responsible,  adopt a comprehensive estate plan adopting and implementing an "Aging in Place" plan, and providing both guardianship planning and guardianship protection. Guardianship and institutionalization are cruelly related in that court appointed guardians often prefer institutional care for their wards, and institutions often refer residents for guardianship. For more information regarding the risks associated with guardianship, visit the National Association to STOP Guardianship Abuse.  Among the best planning tools developed to avoid the risk of institutional care is avoiding institutional care altogether. 


If you want to attend in person or online a seminar on "Aging in Place," its meaning, its importance, and how to incorporate it into your estate and financial plan, simply send us an email with your name and location.   

Congress Considering Removing Medicaid Eligibility Planning Opportunities- Spousal Income Annuities Targeted

Congress is considering making it harder to qualify for Medicaid if a community spouse has an annuity.  The change is part of an effort to close what Congress considers "loopholes" in Medicaid law.

The proposed bill aims to prevent married couples from using assets to purchase an annuity for the community spouse, so that the institutionalized spouse can apply for Medicaid. The bill would count half of the income from a community spouse's annuity as income available to the institutionalized spouse for purposes of Medicaid eligibility. The House Energy and Commerce Committee held a hearing on February 1, 2017, to consider the changes.  It is unclear how eligibility will be changed since income can not be "liquidated" to pay for care.  Regardless, the proposed changes would mean that married couples would have one less tool available to create an adequate safety net for a community spouse affected by nursing home spend down.  

Along with limiting spousal annuities, Congress is also considering bills to count lottery winnings as income and require Medicaid applicants to prove U.S. citizenship or residency before receiving benefits.

For more information about the proposed legislation, click here.