If your loved one or their spouse is a Veteran, they may qualify for VA Aid & Attendance or Housebound Benefits. To qualify they must meet specific criteria in three categories: service time, medical condition or age, and financial limitations.
You must have been discharged in any fashion other than dishonorable. You must have served at least 90 consecutive days in the military and at least one of those days must have been in active military service during VA-defined periods of war. These periods of war may be found here: http://www.vba.va.gov/bln/21/pension/wartime.htm. There are some exceptions for Reservists and members of the National Guard. Inquire with the VA regarding your eligibility status if this applies to you.
Medical Condition or Age
You must be age 65 or older and require assistance with Activities of Daily Living, or you must be permanently disabled, a patient in a nursing home, or be receiving Social Security Disability. It is a common misconception that a Veteran’s disability must be related to the service to receive this benefit.
Your assets and your income must be under certain limits. This may vary depending on your marital status and your medical expenses. You may find out more information here: http://www.vba.va.gov/bln/21/pension/vetpen.htm
The Basics of the Benefit: Long Term Care Coverage
Aid & Attendance benefits, which pay for Home Care, Assisted Living and Nursing Care, need to be determined to be medically necessary on the basis of an individual’s inability to perform Activities of Daily Living; this determination will be made by a doctor. The application process is lengthy, and should be started as soon as this medical determination is made.
In some cases it can take twelve months or more for the application to be fully processed. If the beneficiary meets qualifications, the benefit will be paid retroactively from the time the application was submitted; however, if the applicant passes away before the application is processed, the application will be cancelled and the benefit will not be paid retroactively to the heirs.
The Aid & Attendance benefit amount will only pay for care costs that surpass the monthly income of the beneficiary.
For instance, if the veteran has an income of $2000 per month from his VA pension and Social Security, but his home care costs are $3500 per month, the benefit will not exceed $1500 monthly. The maximum benefit is currently just over $21,000 per year for a single individual with no dependents. This money is paid directly to the beneficiary, who then pays the provider. In order to qualify, the beneficiary must have less than $80,000 in assets, not including their home, car, or annuities.
There is no “look-back” period in applying to the VA for benefits. This means that the VA will not inquire further into your accounts than the current statement.
Assistance in completing the application is available from Veteran’s Service Organizations; however, if you have a complicated portfolio of assets, it is advisable that you consult with a financial advisor and/or Elder Law Attorney prior to submitting your application or making any changes to your loved one’s assets that may threaten your loved one’s Medicaid eligibility should Medicaid become necessary in the future.
In some cases, receiving VA Aid & Attendance benefit has had the negative consequence of precluding eligibility for later Medicaid applications, especially in cases where a lump sum is paid out retroactively when the application is finalized. This is one of the many reasons that it can be helpful to complete financial planning with an Elder Law Attorney before the application is submitted, especially one who is accredited by the Veteran’s Administration.
Activities of Daily Living (ADLs) are the basic activities of day-to-day living that one must complete to live comfortably and healthily. These activities include the following:
Ambulating: Walking, with or without assistive equipment such as a cane or walker, or operating a wheel chair or motorized scooter.
Transferring: Transitioning one’s body position to ambulate. For example, standing up from a chair or getting from the bed to a wheelchair.
Toileting: Including the entire process of going to the bathroom, from needing reminders to initiate or to complete steps throughout the process, to needing physical assistance with pre or post bowel/bladder movement care.
Feeding: Physical capacity to eat meals, not including meal preparation.
Dressing: Including choosing appropriate clothing, and undressing.
Grooming: Including bathing, dental cleaning, and all hygienic self-care.
It is important to know and understand the Activities of Daily Living that your loved one has difficulty performing, and those which they need “cueing” with -- meaning reminders or prompts to complete the activity.
Many providers and benefit programs use ADLs to evaluate the appropriate care level for your loved one, or to determine benefit eligibility. Medicaid, VA Benefits, and Long Term Care insurance all will require an evaluation of the beneficiary’s ability to perform ADLs.
Aside from the Basic ADLs listed, there is a subcategory called Instrumental ADLs, which include matters like housework, money management, shopping, preparing food, driving, etc.
These are important activities when considering quality of life, but are not typically considered when qualifying for benefits.
They may, however, play a role in determining the appropriate care level when seeking out-of- home care, assisted living, or other care options. So be sure to list the activities that your loved one struggles with and keep this information with the other documents and papers.
For many people who require long-term care, Medicaid is the only option for financing. Medicaid is a federally subsidized, state-run program providing health insurance to those who meet financial requirements, especially children, seniors, and the disabled. In some states, like New Hampshire, Medicaid is simply called Medicaid. In Maine it is known as MaineCare. In Massachusetts it is MassHealth.
For our purposes, we will be talking specifically about how Medicaid services seniors in need of long-term care. In order to qualify for this assistance, there are strict eligibility requirements, both medical and financial.
To qualify for Medicaid coverage for Long Term Care, medical need has to be established. This is determined by assessing the need for assistance with Activities of Daily Living, medication management, or the degree to which cognitive impairment threatens safety.
In Maine, the assessment process is conducted by the state Department of Health and Human Services (DHHS), which uses the KEPRO Assessment, formerly known as a GOOLD Assessment, to determine medical eligibility. In New Hampshire, the evaluation process is not an independent assessment, but rather a review of the senior’s documented medical history by a team of DHHS professionals. The review team carefully assesses physician’s notes and recommendations, and, in some cases, asks for additional examinations and testing. If you live in New Hampshire and you believe your loved one will need to apply for Medicaid, talk with your loved one’s physician openly and honestly about the challenges you have observed that he may not be aware of, as his support will be critical.
In both Maine and New Hampshire, you have the right to appeal the decision if the assessment shows that your loved on is not medically eligible for Medicaid assistance.
Financial eligibility requirements vary from state to state. All states have asset limits that are generally very stringent. Middle class people are particularly vulnerable in this regard. In general, people in the middle class do not have the assets to pay for nursing care privately if it becomes necessary, but they have to go through a significant “spend down” of their assets before they qualify for Medicaid assistance. In the case of a couple, there is some protection of assets for the “community spouse,” meaning the spouse that remains living independently in their family home. Still, the provisions are not much and the spend down can be financially devastating.
In addition, some states also have income limits that can disqualify seniors from receiving Medicaid benefits. These kinds of limitations vary from state to state. To get a clearer idea of what the requirements in your state are, or whether you will have trouble qualifying for assistance, speak to an Elder Law Attorney, or contact a local Senior Care Advisor.
There are some assets that are considered non-countable or exempt in a Medicaid Financial application. These include the primary residence, household furnishings, wedding rings, vehicles, pre-paid funeral expenses, and businesses that still produce income. This is not a complete list, and again, this can vary from state to state. It is advisable to speak with an Elder Law Attorney about what is and is not a countable asset.
Look-back Periods and Penalties
When applying for Medicaid, a person’s finances may be subject to a “look-back” period. The length of this period varies from state to state. The purpose of this period is to prevent people from giving away money to children in order to shelter it from Medicaid. If any substantial amount of money is found to have been given away during the five years prior to the application, or any countable asset sold for significantly less than its market value, there is a penalty period.
The penalty divides the amount of money given away, by a state-set nursing home monthly cost; the senior then becomes ineligible for Medicaid assistance for that number of months. For instance, if a senior gives their son or daughter $40,000 dollars within the look back period, and their state-determined nursing care rate is $5,000 per month, that senior becomes ineligible for Medicaid assistance for a period of eight months. This has become a widespread problem, as so many people engage in the practice of giving away money before death to avoid estate tax.
Under certain circumstances, some asset transfers are considered protected. Be sure to check with a qualified Elder Law Attorney before making a significant transfer of assets.
Elder Law Attorneys & Medicaid Planning
Elder Law Attorneys are experts on the Medicaid requirements of the states they practice in, and they are the most qualified to assist in financial planning in terms of qualifying for Medicaid, whether it be in a crisis situation, during a spend down, or well in advance of needed services. See the Elder Law Attorney section for more details.
The first thing to understand about Medicare is that it does not pay for Long Term Care services, including Home Care, Assisted Living, Memory Care, or Nursing Care. This is a common misconception about Medicare, leading many people to believe they do not need a contingency plan in place once they qualify for Medicare.
Medicaid is the federally and state funded program that helps to pay for long-term care under certain qualifications. However, not everyone who qualifies for Medicare also qualifies for Medicaid. Medicaid is only available to people who fall beneath strict asset and income limits and access specific medical care. These limits vary state to state, as does coverage. You can read more about this program in the Medicaid section.
Medicare is a federally funded health insurance program available to all people over the age of 65. It is also available to individuals younger than 65 with permanent kidney failure in need of dialysis treatment, or to individuals who are unable to work due to disability and meet specific criteria. It operates similarly to traditional health insurance, but there are no limits on pre-existing conditions.
Medicare is broken down into many parts:
Part A provides inpatient hospital coverage, rehabilitation stays at Nursing Care Communities, and Hospice Care. There is no premium for individuals over age 65 who are receiving Social Security. If you are not eligible to receive social security, you may have to pay a premium.
Part B covers outpatient care, primary care, and specialist care, as well as some additional services; e.g., mobility assistive equipment. Part B costs an affordable, subsidized premium, which commonly is deducted from your Social Security pension.
Part C is called Medicare Advantage and is an optional substitution plan to Parts A and B. Medicare Advantage plans are run by private companies, but they are overseen and regulated by the government. They must include all of the benefits of A and B, but often include extra coverage for a higher premium; this may include prescription, vision and dental care. Out of pocket expenses may be lower with Part C plans.
Part D is prescription drug coverage. Like parts A and B, the government manages it, but it is voluntary to enroll.
You want to enroll in Medicare during the three months before you turn age 65 in order to ensure there is no delay in your coverage. If you miss this window, you may still enroll up to three months after you turn age 65, not including your birth month. In other words, if you turn age 65 in April, you may enroll, penalty-free, from January until July. If you do not enroll during this period you may have to pay a higher premium for late enrollment.
Medicare also has a yearly open enrollment period that falls between mid-October and early December, though the exact dates change by year. During this time, you can make changes to your Medicare coverage. It is important to understand that Medicare is not one-size-fits all, and as you age and your medical needs change, you may need to change your coverage.
Often, people are either under insured or over insured. To determine if you fall into one of these categories, get some assistance in evaluating your needs. Medicare.gov has a plan finder that can help you find what kinds of coverage are right for you, given your medical and prescription needs. Additionally, you can contact your local SHIP (State Health Insurance Assistance Program) for a referral to someone who is qualified to support you in figuring out what coverage plan is right for you.
If you have questions about Medicare, please contact us. We will happy to answer your question by e-mail, or set up an office hour to sit down with you and discuss your questions.
An Elder Law Attorney is going to be a very valuable ally for you as you transition into a caregiving role for an aging loved one.
The best way to explain the value of an Elder Law Attorney, if you have not already experienced it, is to make an analogy. If you needed a heart transplant, you would not go to your family practice doctor. You would go to a cardiologist, who is an expert on the matter. The same can be said of general practice lawyers and Elder Law Attorneys.
While many think of retaining the services of an attorney to be something that only the wealthy do, it is often those in the middle class who have the most to gain from retaining the services of an elder law attorney. While those who have the fewest financial resources may access Medicaid right away, and those with extensive resources may never need it, those in the middle stand to gain a great deal from early planning in terms of an eventual medicaid spend down.
In matters asset preservation, estate planning, wills trusts and probate, Powers of Attorney and Advanced Medical Directives, and Medicaid planning, the stakes are high. You may find it is worth taking the time with an Elder Law Attorney to make sure that you do not make any costly mistakes.
For example, while general practice attorneys may know their way around asset preservation, they may not be knowleagable on Medicaid laws and regulations. The result could be asset preservation that incurs penalties if you later apply for Medicaid to supplement the cost of Home Care, Assisted Living, or Nursing Care.
You can find reputable Elder Law Attorneys through the National Association of Elder Law Attorneys.
If the cost of an Elder Law Attorney is outside your budget If this is outside your budget, contact your local Area Agency on Aging to findout if there are free Elder Law agencies or sliding scale firms in your area.
New Hampshire: http://www.dhhs.nh.gov/dcbcs/beas
Massachusetts: http://www. cityofboston.gov/elderly/agency.asp
A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.
Establishing Guardianship is a court process which is a great deal more costly and complicated than establishing a Power of Attorney. A medical evaluation of competency is legally required. The senior must be determined medically incompetent. This process is emotionally draining for the senior and his family. After the incompetency is determined, the person seeking Guardianship must go before a judge to declare the incompetence and petition for Guardianship. The court
date is announced and all family members will be informed and invited to contest, whether or not they have a meaningful relationship with the senior in question. The senior may also contest the proceedings.
It is recommended to avoid Guardianship to the best of your ability. Investing the time and money to consult with an Elder Law Attorney to draft an airtight Power of Attorney document early, and before a crisis hits, ismuch more cost effective and may save a family a significant amount of emotional hardship. When Guardianship cannot be avoided, seeking the advice of an elder law attorney is appropriate.
Who should you trust with your POA? It does not necessarily have to be the family member or friend with the most health care knowledge or the most advanced understanding offinances.
It is not wise to name a person as POA just to spare hurt feelings. For example, in a family where there are four adult children, the temptation is often to name all four children as POAs
so that everyone has fair say, but this can complicate decision-making in the future when family dynamics come into play.
The best course, usually, is to choose two loved ones (one as the primary agent and one as an alternate) that you trust to keep your best interests at heart. You may grant both financial and medical powers to the same agent, as medical and financial decisions will overlap frequently. If you choose different individuals as financial and medical POA, be sure to choose individuals who work well together, as frequently they will have to agree mutually on decisions.
While you do not need a financial wizard or a medical pro as your POA, you do want to consider the capabilities and personalities of the people you are designating. Someone who has poor history with money management, or has been unable to keep her own paperwork organized, is probably not the best choice for Financial POA. Someone who may be too emotionally frail to make difficult decisions surrounding death is not necessarily the best choice for Health Care POA. You will also be required to name an alternate for each position, a person that can take over the responsibility ifthe first person refuses, becomes incapacitated, or dies.
If you cannot name family members or close friends, you may name an accountant, attorney, or another professionalto be your financial POA. In this case, there will be a schedule of fees associated with the service. Compensation is decided between the principal and the agent, If you wish, family and friends may also be compensated for their service as your agent.
What if a person becomes incapable of making financial or health care decisions for themselves, but they have no POA agent? What if your agent is deceased and the backup refuses? What if the agent was your spouse, but you since divorced and never updated the document? In any of these scenarios, an agent will have to be granted Guardianship, since cannot establish POA for a person who is cognitively incapacitated.
When you begin taking on the role of caregiver to an aging adult, your first step in the process should be to consider your loved one’s Power of Attorney (POA). If your loved one does not have a Power of Attorney in place, or if it needs to be updated, you need to establish this vital document.
A POA is a document in which an individual (known as the “principal” or “grantor”) names another person or multiple people (the “agent(s)” or “attorney(s)-in-fact”) as decision-maker(s) on behalf of the principal. This document is essential to handling your loved one’s financial and medical affairs.
Executing a POA does not require that the principal be cognitively incapable of making decisions;
it simply allows another person to act on the principal’s behalf. For example, a principal may be hospitalized for a brief time and need an agent to access bank accounts to pay bills. As long as the principal is capable of making decisions, the agent must follow her directives. A POA can be revoked at any time should the principal become dissatisfied with the agent’s actions.
There are different types of POAs. Some “General” POAs expire when the principal becomes cognitively incapacitated; if the principal can no longer make decisions, the agent’s Power
of Attorney is revoked. When establishing a POA for a senior, a “Durable” POA is recommended. This POA allows the agent tomake health care or financial decisions for the senior if they become incapable of making these decisions for themselves.
In some states, Durable Power of Attorney can be “springing,” meaning that the named agent does not acquire Power of Attorney until the principal becomes incapacitated. The definition of incapacitation can be customized within the document when written by a qualified Elder Law Attorney in the state where the POA will be executed.
Principals may designate different individuals as Financial POA and Health Care POA. Financial POAs empower agents to handle financial transactions, such as managing investments, depositing checks, paying bills, and completing tax returns. Health Care POAs make medical and care decisions, such as treatment decisions and accessing long term care benefits.
In both cases, the agent is the fiduciary of the principal, meaning they are legally obligated to act loyally and with the best interests of the principal in mind, honoring their wishes and preferences whenever these are known.
In the case of a medical power of attorney, it is generally wise for an individual to create a health care advanced directive at the same time, making known their wishes for life-prolonging treatment or end-of-life care in the event that catastrophic illness or injury prevents them from communicating their wishes later. This includes statements regarding resuscitation, life support measures, as well as services for spiritual counsel or prayer. Many states allow a medical power of attorney and a health care advanced directive to be in the same legal document.
There are forms available online that make it possible to create a POA without legal advice or help. Though this could be better than not doing it at all, given the sensitivity and vital importance of the POA content, it is recommended that you consult with an elder law attorney.
Click Here to Read “How to Choose Power of Attorney”