Astronaut Buzz Aldrin Subject of Guardianship Dispute

Buzz Aldrin: en.wikipedia.com

Astronaut Buzz Aldrin is fighting an attempt by two of his three children to place him under involuntary court-appointed guardianship, according to the Washington Post. The eighty-eight year old, the second person ever to walk on the moon, denies that he is incompetent, and is suing his children, and a former manager, for elder exploitation, financial abuse, and defamation.

Aldrin's children claim that they only are trying to protect the legendary astronaut, who they claim is paranoid and in cognitive decline.  An ABC News report suggests that the family dispute actually began in 2016 after Aldrin collapsed while on an expedition to the South Pole, and had to be evacuated.  The children allegedly sought to limit his activities after the incident, including curtailing what they saw as a lavish lifestyle.

According to the Wall Street Journal,  Aldrin voluntarily submitted to a mental evaluation in April, and passed with flying colors.  An independent doctor determined that Aldrin remains "cognitively intact and retains all forms of decisional capacity." 

Of course, the children blame the lawsuit and allegations of financial exploitation on Aldrin's lack of capacity.  “Let it be clear that every one of these allegations are products of the increased confusion and memory loss that Dad has demonstrated in recent years,” Andy and Jan Aldrin told the Washington Post.  They claim that Aldrin started associating with a third parties who were “trying to drive a wedge between Dad and the family,” Andy Aldrin said. The siblings said they would not allow “opportunistic agents to grab the spotlight, break our family apart.”

Buzz Aldrin has walked on the moon, received both the Distinguished Flying Cross in the Korean War and the Presidential Medal of Freedom, and visited the White House.  He frequently discusses space exploration, and envisions humans living on Mars.  

The Wall Street Journal observes that Aldrin's "legacy in space is secure. On earth it’s another matter." Perhaps in space, there will exist a better system for dealing with allegations of cognitive decline, and a system preventing third party control of a person's financial and non-financial legacy. 

Nursing Home Fails in Effort to Remove Resident's Guardian Over Failed Medicaid Application

Nursing homes often develop a tense relationship with the fiduciaries that represent their residents' interests.   Trustees, guardians, and agents (attorneys-in-fact) should be aware that a nursing home, or any other institution, might lose confidence of the fiduciary and seek his or her replacement.  A recent New Jersey case concerned the legal dispute that arose when the nursing home sought to replace a resident's court-appointed guardian.  

A public guardian was appointed for Y.M., a nursing home resident. The guardian applied for Medicaid on Y.M.'s behalf. The state denied the application, and the guardian appealed, but then withdrew the appeal and submitted a new application.

The nursing home filed a motion to remove the public guardian and replace the guardian with one of two other individuals. The nursing home argued that the public guardian had made errors in the Medicaid application and failed to set up a qualified income trust (QIT) for Y.M., which resulted in the denial of the Medicaid application. Y.M. argued that the alternate guardians suggested by the nursing home had a conflict of interest. The trial court denied the nursing home's motion, and the nursing home appealed.

A New Jersey appeals court ruled against the nursing home's effort to remove the resident's guardian.  The nursing home filed a motion to remove the resident's court-appointed public guardian because the resident's initial Medicaid application, prosecuted by the guardian, was denied.  The appellate court ruled that the denial of the Medicaid application was not proof that the guardian was not acting in the resident's best interest. In the Matter of Y.M. (N.J. Super. Ct., App. Div., No. A-4532-16T4, June 8, 2018). According to the court, "aside from the payment of Y.M.'s debt to the facility, [the nursing home] provided no other information to convince the judge Y.M. was dissatisfied with [the public guardian]."

Dementia Depletes Life Savings

The financial and non-financial impact of dementia is undeniable, but is most tangibly recognizable in its tragic elimination of life savings. It is vital that everyone involved in planning for seniors recognize and appreciate the limits of Medicare, which only covers health care based on a diagnosis of illness or injury. The San Jose paper, the Mercury News ran an important story describing this phenomenon, aptly titled,"How dementia can drain a family’s life savings."  The subheading to the article offers this stark warning: "Medicare offers no help for the high costs of dementia caregiving."

The article explains:

”Medicare is a lifeline for seniors and the disabled, paying for “medically necessary” costs such as hospitalization, surgery, chemotherapy, transplants, medications, pacemakers and other interventions... A dementia diagnosis demands none of that. What it does require, however, is around-the-clock “custodial care,” such as help with eating and dressing, and constant supervision. That’s not covered by Medicare. And it’s extraordinarily expensive, according to a report released last month by the Alzheimer’s Association...Families’ out-of-pocket costs for a patient with dementia are 80 percent higher than the cost for someone with heart disease or cancer, according to a 2015 study in the Annals of Internal Medicine.

According to a report from the Alzheimer's Association, families can expect to spend sixty billion dollars ($60,000,000,000) caring for those with dementia!  The study apparently does NOT include those who suffer from early onset Alzheimer's.  The number of Americans living with Alzheimer's is growing — and growing fast. An estimated 5.7 million Americans of all ages have Alzheimer's.

An estimated 5.7 million Americans of all ages are living with Alzheimer's dementia in 2018. This number includes an estimated 5.5 million people age 65 and older and approximately 200,000 individuals under age 65 who have younger-onset Alzheimer's.

• One in 10 people age 65 and older (10 percent) has Alzheimer's dementia.
• Almost two-thirds of Americans with Alzheimer's are women.
• Older African-Americans are about twice as likely to have Alzheimer's or other dementias as older whites.
• Hispanics are about one and one-half times as likely to have Alzheimer's or other dementias as older whites.

As the number of older Americans grows rapidly, so too will the numbers of new and existing cases of Alzheimer's. Today, someone in the United States develops Alzheimer's every 65 seconds. By mid-century, someone in the United States will develop the disease every 33 seconds.

Mortality from Alzheimer's is shockingly high, but mortality so often comes with a steep cost for lifetime suffering.  Alzheimer's disease is the only top 10 cause of death in the United States that cannot be prevented, cured or even slowed.

Alzheimer's disease is the sixth-leading cause of death in the United States, and the fifth-leading cause of death among those age 65 and older. It also is a leading cause of disability and poor health.
Although deaths from other major causes have decreased significantly, official records indicate that deaths from Alzheimer's disease have increased significantly. Between 2000 and 2015, deaths from Alzheimer's disease as recorded on death certificates increased 123 percent, while deaths from the number one cause of death (heart disease) decreased 11 percent.  Among people age 70, 61 percent of those with Alzheimer's are expected to die before the age of 80 compared with 30 percent of people without Alzheimer's — a rate twice as high.

There are tragically few options for those suffering from conditions with this diagnosis.  Long Term Care Insurance (LTCI) can help, but paying privately is the option selected by the vast majority of those who will spend down assets in order to qualify for Medicaid.  Medicare does not help unless there is a hospitalization, and the benefit is limited. The article notes that families with dementia can forget home care or memory care because Medicare does not cover these treatments or care. 

The challenge of financial planning with dementia in mind is not new. The challenge is certainly becoming a bigger issue with the significant number of Boomers, and the dwindling options available to consumers. The wise seek early legal and financial counsel. The unwise risk losing everything.

Trump Administration Embraces Aging In Place- 2019 Advantage Plans Permitted to Incorporate Long Term Care

Starting in 2019, Medicare Advantage plans can cover adult day care services, and in-home help with activities such as dressing, bathing and managing medications, a top Trump administration official said Wednesday, according to an article entitled, "Official Gives Hints About Medicare Advantage LTC Benefits," published in ThinkAdvisor.  The move might make Medicare Advantage Plans (hereafter "Plans") more attractive alternatives to Medicare. 

Seema Verma, the administrator of the Centers for Medicare and Medicaid Services (CMS), spoke about the Medicare Advantage program’s new benefits flexibility at a Medicare conference at CMS headquarters, in Baltimore.  CMS announced the changes in April, in a memo sent to potential 2019 Plan issuers. According to the article, while it is not yet clear whether any issuers will add significant supplemental benefits for 2019, "executives from Humana Inc. hinted during their first-quarter earnings call that they might be able to work with partners"  to provide such benefits.

According to the article:

Verma told insurance company executives at the conference that CMS hopes its new “reinterpretation” of the Medicare Advantage program benefits rules will help unleash private-sector innovation and creativity.  She said she has seen the effects of that creativity in her own life.  “Both my parents are enrolled in a Medicare Advantage plan, and they can’t stop talking about them,” Verma said, according to a written version of her remarks distributed by CMS.

A copy of Verma's speech is available here.  

The Old Rules

The Medicare Advantage program lets private insurers use a combination of government money and patient premiums to provide an alternative to traditional Medicare coverage.  In the past, managers of Medicare Advantage have tried to simplify the Plan shopping process, and discouraged Plans from offering benefits that might drive up health care costs, by putting tight restrictions on the kinds of benefits a Plan issuer can offer.  Those restrictions kept Plan issuers from adding benefits such as adult day care benefits, except when the Plans were participating in CMS pilot programs or other special programs.

The New Rules

CMS is employing a new strategy permitting Plans that offer benefits that  compensate for physical impairments, reduce the impact of injuries, or reduce avoidable use of emergency rooms.  Although Verma did not use the terms “long-term care,” or “short-term care,” in her remarks or written speech, the benefits she described are similar to the kinds of benefits many private long-term care insurance policies offer through home health care and community care provisions.  The new approach and resulting rules will also allow Plans to add supplemental benefits tailored to meet the needs of people with specific conditions, including chronic conditions.

The new interpretations are separate from and further expand the chronic care benefits already offered in the Bipartisan Budget Act of 2018 through Medicare. The BBA-2018 provisions expand the range of Medicare supplemental benefits chronically ill enrollees can get starting in 2020.

Requirements for Supplemental Benefits

Of course, the devil is often in the details, and proposed rules were not published. Regardless, the guidance suggests that the additional Plan benefits must ensure the benefits are ”primarily health related,” and "not primarily for a patient’s comfort."  The services covered "must be recommended by a physician or other licensed medical professional as part of a care plan," and the new benefits "must not include items or services used to induce enrollment."  A Plan can choose to help individuals both with basic “activities of daily living,” such as walking, and with the “instrumental activities of daily living,” such as taking medications correctly.

The new interpretation will let a Plan tailor benefits, such as deductibles or wellness options, to fit people with certain medical conditions, such as diabetes.  That interpretation will not, however, allow a Plan to tailor benefits based on an enrollee’s income or poverty level, or any other characteristic other than health status.  Plans must use “objective and measurable” criteria to identify eligible enrollees.

Representative Payee Rules Change

On April 13, President Trump signed the Strengthening Protections for Social Security Beneficiaries Act of 2018. The law directs state Protection & Advocacy (P&A) system organizations to conduct all periodic onsite reviews along with additional discretionary reviews. In addition, the P&As will conduct educational visits and conduct reviews based on allegations they receive of payee misconduct. The new law allows the Commissioner to exempt custodial parents of minor children and disabled individuals, as well as spouses, from annual payee accounting.

Representative Payees can complete a Representative Payee Report form online  to account for the Social Security or SSI benefits received or P&As may select a representative payee for review.

The P&A review includes:

• an interview with the individual or organizational representative payee;
• a review of the representative payee’s financial records for the requested beneficiary or sample of beneficiaries served;
• a home visit and interview for each beneficiary included in the review; and
• an interview with legal guardians and third parties, when applicable.

Financial Records Representative Payees Should Have Available for Review

When the P&A schedules the review, the reviewer will request the records needed for each beneficiary. Some common financial documents that representative payees may be asked to provide are:

• a beneficiary budget;
• a beneficiary ledger;
• individual bank statements;
• Collective account bank statements;
• receipts of income;
• account balances;
• bank reconciliation records;
• cancelled checks;
• expense documentation including receipts, bills, and rental agreements;
• how the payee keeps conserved benefits (e.g., checking, savings, etc.); and
• any other financial documents that pertain to a beneficiary’s Social Security and/or SSI benefits.