Page 3 - Access Winter 14.15

ASKthe expert Why is this necessary?
considered the gold standard in the industry and is earned through a rigorous criterion. Attorneys with this designation have at least 45 hours of additional edu- cation in elder law and must prove that they have substantial experience prac- ticing elder law. You can find a Certified Elder Law Attorney near you by calling the National Elder Law Foundation at 520-881-1076 or visiting their website
at www.nelf.org.
Is there anything else I should
consider when paying a caregiver?
It’s also important to address possible tax consequences. Technically, from a tax perspective, this person should usually be a W-2 employee, even for family members. Caregivers try to work around this by using an independent contractor status, but it’s important to talk with a certified public accountant or tax preparer beforehand so that you take the proper steps.
What are some other documents I
should have in hand?
If you want to remain in your home for as long as possible, there are documents that are absolutely necessary. These include a...
Financial Power of Attorney:
Designating someone to make financial decisions for you in the event that you’re unable to do so.
Patient Advocate Designation:
Appointing someone to make medical decisions on your behalf in the event that you’re incapacitated mentally or physically.
Health Insurance Portability and Accountability Act (HIPAA): Gives your patient advocate access to your medical records.
Living Will or Revocable Living Trust:
If you’re unable to speak on your own behalf, this defines what you do and don’t want in terms of medical treatment.
Is there anything else I should consider?
From a planning ahead standpoint,
you might also want to set up an asset protection trust to qualify for any type of government benefit. This means that you can be over in assets today, but by placing them in an asset protection trust, you can still qualify for the benefit. The VA benefit (for a veteran or their spouse)
has an asset test where you do an accounting of your liquid assets and real property. Currently, there’s no ‘look back’ period, as is the case with Medicaid where the government looks back at assets accrued throughout the past five years. But that could change soon with House of Representatives bill H.R. 2189 which is being reviewed by the senate and could become law this year, imposing a three year look back. An asset protection trust could shield you from the effects of this proposed law. It’s a step that could bring in an extra $1,000-$2,000 per month to help cover caregiver costs.
Author of “The Caregiver’s Legal Guide: Planning for a Loved One with Chronic Illness,” Berry, founder of The Elder Care Firm with offices in Bloomfield Hills Brighton, Livonia and Novi, practices elder law; helping clients with estate, preservation, long term care, VA benefits and Medicaid planning.
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Christopher J. Berry, Certified Elder Law Attorney
Hiring A Caregiver: What’s
a personal care contract
and why is it important?
What’s one document people often
fail to consider?
A personal care contract. In fact, I’d estimate 95% of the clients I see who were paying a caregiver, did not have this document in place.
What is it exactly?
It’s a contract between the care recipient and the care provider, often a family member detailing the services provided, time commitment, and fair market exchange of money for services.
Whenever you’re exchanging money for caregiving services (including family) if not handled properly, this exchange could disqualify a care recipient from future Medicaid or VA benefits.
How can a care recipient be
penalized?
If your health worsened and you considered applying for Medicaid to cover a nursing home facility, the Michigan Department of Health Services (DHS) who administers Medicaid will view that payment to a caregiver as a gift unless you have a personal care contract in place. Without this document, you could be disqualified from Medicaid.
Could I create my own?
I don’t recommend it. A personal care contract must meet some very specific requirements. For this reason, it’s important to seek the help of a professional. DHS has very explicit language and rules. If the personal care contract is not aligned with this, then DHS will disqualify the contract and it won’t be recognized by Medicaid.
Are there attorneys who specialize in
these contracts?
A Certified Elder Law Attorney (CELA) specializes in legal issues pertaining to older adults and disabled persons. Not all attorneys are ‘certified’ to practice elder law. This CELA designation is
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