The need for a guardianship really depends on the facts and circumstances of each case, however, many guardianship cases result from the absence of a properly drafted power of attorney (“POA”) and statutory gifts rider (“SGR”).  In order to sign these documents, one must possess contractual capacity.  Most people diagnosed with the onset of dementia or Alzheimer’s still have contractual capacity.  If, however, a diagnosis is received mid to late stage, capacity might be diminished.  Determining capacity from a legal perspective involves the judgement of the attorney and follows a series of questions asked by the attorney.

The underlying circumstances giving rise to the need for a POA, SGR or guardianship are usually centered around financial transactions.  For instance, a person having Alzheimer’s might need care, whether at home or in a nursing home, and in order to pay for the exorbitant costs of such care, Medicaid eligibility is sought.  Medicaid eligibility involves accessing the applicant’s financial assets and moving those assets to family members or trusts.  If the applicant no longer has the requisite capacity to sign a POA or SGR, which would give another person the ability to handle these financial matters, a guardianship is needed.

Guardianships can be avoided with advanced planning.  If you or someone you know has the onset of a cognitive impairment, it is imperative that you contact us to draft a POA and SGR.  In the absence of those documents, we can be retained to commence a guardianship proceeding.

As the population ages, the need for caregivers is growing, but more restrictive immigration policities such as those being promoted by the Trump administration could have a negative impact on a caregiving industry that is already facing workforce shortages.

The Supreme Court is currently considering the administration’s decision to end the program that protected young undocumented immigrants from deportation, known as Deferred Action for Childhood Arrivals, or DACA. Among other policies, the administration has also ended Temporary Protected Status — a program that gives immigrants who can’t return to their home countries due to violence or natural disaster permission to work and live in the United States — for several groups, including immigrants from Haiti, El Salvador, and Nicaragua.  In addition, another effort is to shift from “chain migration,” where people enter the country based on family ties, to immigration based on skills, which are presumably not caregiving skills but more high-tech abilities. Read more

Medicare does not offer much in the way of dental benefits. To get dental coverage, you need to purchase separate and often costly dental insurance or sign up for a Medicare Advantage plan that includes dental care. Advocates for Medicare beneficiaries are arguing for a change.

Common dental procedures or supplies, such as cleanings, fillings, tooth extractions, dentures, dental plates, or other devices are currently not covered. Medicare Part A, the insurance for inpatient hospitalizations, will cover certain emergency or necessary dental procedures that are received in the hospital. For example, if you are hospitalized after an accident and require jaw reconstruction, Medicare Part A will pay for the dental work required as part of that procedure. In addition, Medicare Part A specifically covers oral examinations for patients who are in the hospital to receive a comprehensive workup for a kidney transplant or heart valve replacement. Read more

The Centers for Medicare & Medicaid Services (CMS) has released the 2020 federal guidelines for how much money the spouses of institutionalized Medicaid recipients may keep, as well as related Medicaid figures.

In 2020, the spouse of a Medicaid recipient living in a nursing home (called the “community spouse”) may keep as much as $128,640 without jeopardizing the Medicaid eligibility of the spouse who is receiving long-term care. Known as the community spouse resource allowance or CSRA, this is the most that a state may allow a community spouse to retain without a hearing or a court order. While some states set a lower maximum, the least that a state may allow a community spouse to retain in 2020 will be $25,728. Read more

Powerless Power of Attorney

In certain circumstances, a revocable living trust must be strongly considered.  To determine if a revocable living trust is an appropriate necessity, one must first understand its purpose.  Unlike a Last Will and Testament (“Will”), a revocable living trust does not need to be probated upon one’s death.  Probate is the legal process of going to Court to prove that the decedent’s Will is valid, culminating in the appointment of an executor.  Many people do not realize that an executor named in a Will has no authority until the Court officially says so.  Generally, if one dies having a Will and with assets in their sole individual name without beneficiary designations (i.e., outside of those specified in their Will), their heirs will be subjected to the probate process.  Read more

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