Based on Illinois Lawyer’s votes, Leading Lawyer Magazine Fall/Winter Edition announced:

The Top Ten Elder Law Attorneys

1.  Rick L. Law

2.  Diana M. Law

We are grateful for our colleagues and we deeply appreciate the professional recognition.

We congratulate the other members of the Top Ten List:

3.  Kerry R. Peck, Peck Bloom LLC

4.  D. Rebecca Mitchell

5.  Eve C. Epstein, Epstein and Epstein

6.  Kenneth M. Bloom, Peck Bloom LLC

7.  Mark B. Epstein, Epstein and Epstein

8.  Janna S. Dutton, Dutton & Casey PC

9.  Joseph T. Monahan, Monahan & Cohen

10. Howard Samuel Berk, IL Disability Association & IL Disability Pooled Trust

On September 28, 2011, we kicked off the first meeting of the Elder Care, Disability and Mental Health Law Committee of the Kane County Bar Association (KCBA).  The committee, which is co-chaired by Kane County State’s Attorney Joseph McMahon and yours truly, will explore issues that impact the law and lives of clients, attorneys, and paralegals.  We will work synergistically to understand the law, ancillary services and hidden obstacles for those burdened by unrelenting long term care demands.  Our first few months will focus on the issues relating to mental illness.

A few years ago, a desperate man walked into the KCBA office, confronted the staff and demanded an attorney.  When they responded that they did not have the power to do that, he threatened, “I bet if I stab you, I would get an attorney!”  The staff locked themselves into an office and called the police.  That day, they came face to face with mental illness.  It is hoped that this new committee will offer solutions for this type of situation.

In July, I attended the National Alliance on Mental Illness national conference as part of a multi-state team of attorneys representing the Special Needs Alliance .  Each of us presented on topics ranging from civil commitment to special needs trusts and served at a booth run by the SNA.  Attendees shared stories of pain related to a family member with mental illness, such as bipolar disease, schizophrenia, post traumatic stress disorder, major depression, and more.  Often, they would bow their head and almost in a whisper say to me, “My son/daughter is in prison.”  Their stories provide motivation for this new KCBA committee. 

Traditional bar committees focus on the law as expressed by cases, statutes, regulations, and judges.  Our new committee will do that but will add the voices of ancillary service providers and stakeholders.  A perfect example was a recent breakfast that Diana Law and I attended with Attorney Inez Toledo of the Illinois Office of Public Guardian and Legal Advocacy Services, and Linda Voirin, LSW, Victim’s Advocate of the Kane County Attorney’s Office.  One would think that someone representing the prosecution and someone representing the defense would take strongly opposing views.  It was enthralling to listen to their insights and illuminating to hear them agree on shared goals for providing quality care for those affected by mental illness; compassionate guidance for overburdened families; and strategies to achieve early intervention for young adults with mental illness before they become misdemeanor offenders.  Ms. Voirin noted that as parents age, they have difficulty caring for an adult child who suffers from mental illness.  Without adequate legal guidance and social services, the elderly parent cannot manage the adult child’s condition. Both women knew the names of many extra legal resources which play key roles in dealing with mental health issues in Kane County, including:

• The Kane County Sheriff’s Office & municipal police departments
• National Alliance on Mental Illness
• Senior Services
• Kane County State’s Attorney and Public Defender’s Office
• Elgin Mental Health Center and Ecker Center for Mental Health
• Provena Mercy Medical Center
• Association for Individual Development
• Kane County Mental Health Council
• Illinois Department of Human Services
• The judiciary

Many of these organizations agreed to work together under the banner of the Kane County Mental Health Task Force as shown in a document entitled “The 2009 Kane County Mental Health Protocol.” 

We fear what we do not know.  We perceive the unfamiliar as mysterious.  But we can move forward together to get past the fear and learn to understand some of the mental health mystery - so that our community will be served in a far better way. 

Mickey Rooney

Due to the recent sensationalism of the Mickey Rooney case, we were asked by a reporter with the Wall Street Journal to provide anecdotal stories for an article about how to protect vulnerable seniors from financial abuse.  The key focus was, specifically, to examine the misuse of financial powers of attorney by trusted persons.  Our team reviewed our files and found that we had clients who had experienced substantial loss of assets from the following:

• The bad son
• The bad daughter
• The bad neighbor
• The bad grandchild
• The bad hired caregiver

In each case, we discovered that the abuse of the senior began before anyone would have considered that person legally incapacitated.  Loss of the ability to protect oneself often precedes actual loss of capacity.  The truth of this statement means that senior citizens become highly vulnerable to financial abuse long before the law sees them as needing the protection of “the system.”

A report released by the National Center on Elder Abuse confirms what we found in our research.  The report mentions that “between 1 and 2 million Americans age 65 or older have been injured, exploited, or otherwise mistreated by someone on whom they depended for care or protection.”

One of the most important findings of our internal research was that in every case except for the “bad hired caregiver,” an attorney had prepared the financial power of attorney which a loved one or trusted neighbor used to betray the principal.  I was asked by the reporter, “How could that happen?”  I did not have a good answer to give to her.

The truth is that aside from doctors, it is the bankers, financial advisors and attorneys who may be in the best position to spot the first warning signs of Alzheimer’s or dementia. This article in the New York Times states that “New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements.” Unfortunately, most financial or legal advisors are not trained to look for these signs, and they are not educated about what actions to take if they do start to notice warning signs.

Most advisors will tell you that their first duty is to their client, so what is an advisor to do when a client asks (often quite reasonably) to change their will or power of attorney? “Financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping.” Elder law attorneys such as myself may have an edge when it comes to recognizing the signs of dementia or abuse, but many families don’t think to consult an elder law attorney until it’s too late; other advisors need to be made aware of some of these warning signs.

We as attorneys can make a difference in protecting vulnerable seniors from financial abuse.  We need to have a heightened degree of skepticism when anyone approaches us and seeks to create a power of attorney.  At the very least, we must interview the prospective client/principal independently.  We are not trained to administer a mini mental health exam—but under the new Illinois Rules of Professional Responsibility, we can work proactively to protect vulnerable seniors.

Task Force for Senior Fairness

“Legislators Block Proposed Illinois Nursing Home Medicaid Rules”—that was this morning’s newspaper headline in our state capital.  That headline would not have happened except for major efforts on the part of our legal/political/lobbying team.

Here is a little background:  Last year, I needed to take a break from blogging so we could create a team to lobby in defense of the frail and the elderly citizens of Illinois.  We had not planned on taking a one-year-long blogging hiatus—but when the Illinois Department of Healthcare and Family Services (IHFS) proposed its first draft of Medicaid rules changes in May of 2010, we felt the regulations were critically important enough to give it our full attention.

And give it our full attention we did!  We created the Task Force for Senior Fairness.  The task force included concerned attorneys from all over the state of Illinois and the Cook County Public Guardians Office.  We have worked alongside the Illinois Chapter of the National Academy of Elder Law Attorneys (NAELA).  With this amazing group of people we have been able to achieve far more than we had initially thought possible, including:

• Hiring a capable lobbyist to help us communicate an understandable message to our legislators in the House of Representatives and the Senate, as well as the Illinois Department of Healthcare and Family Services (which administers Medicaid).
• Convincing legislators that while overhauling the Medicaid rules must be done in compliance with new federal law, it would be unfair to make the new Illinois Medicaid rules more harsh than the federal mandate.
• Creating a website (www.DontHurtGrandma.com) to help deliver information to politicians as well as to public interest groups and the average concerned citizen.

Fighting to make a difference, is important and invigorating work, but in many ways it has been like taking on an additional job!

There have been quite a few people who have been integral to our fight for senior fairness, including task force co-chair and renowned elder law attorney Kerry Peck; elder law attorney  (and my own daughter) Diana Law, who served as the task force co-chair and tireless advocate for rights for seniors; senior communications expert Jessica Bannister (a farmer’s daughter who is the webmaster and legislative chair for the Kendall County Republican Women); and our talented and highly regarded democratic lobbyist Michael Bauer.  We hope to feature some of these amazing colleagues in future blog posts, so that our readers can get to know and appreciate them as we do.

And of course I can’t send out a post about what’s been going on over the past year without talking a little bit about my family.  Some of my readers know that I have been an avid horseman for many years, which is why I was thrilled to be able to buy my two oldest granddaughters (5½-year-old Lucy and 4½-year-old Daphne) their first riding helmets this winter!  I can’t wait to start riding with both girls this summer, enjoying some grandfather-granddaughter “horseplay.”

Feel free to contact me at ricklaw@lawelderlaw.com.  I look forward to catching up with you, keeping you informed, and continuing the conversation here at my blog!

After a long hiatus, we’re back to posting regularly on our blog!  We’ve been very busy over the past  year and can’t wait to share what we’ve been doing with our readers; but first, we want to share some important information about an issue that affects many of the clients who come into our office, and something we’d like to help prevent: When dementia hits the pocketbook.  We hope you find this information helpful, and please come back next week to read about the exciting things we’ve been doing in our firm and in the community!

The first signs of Alzheimer’s or dementia are not always easy to see.  Families may go months or more before they realize that a loved one is forgetting a few too many things or confused about more than just the new DVD player.  One of the first signs of Alzheimer’s or dementia is also one of the most dangerous—a growing inability to understand and handle financial matters.  Elder care lawyers often hear stories that reveal that one of the first signs of dementia is an inability to understand money, personal finances, and contracts.  Client families need to take steps to protect the family finances when a loved one grows vulnerable to financial manipulation.  There is no legal standard for ‘vulnerability,’ but vulnerable individuals are easy prey for scam artists and just plain poor financial decision-making.  One novel idea used by a family to stop the loss of thousands of dollars being spent by a loved one to obtain supposed lottery “winnings” was to limit the affected person’s checking account balance.  In addition, family members actively created a lottery game to distract and amuse their loved one.  It worked!

If family members live far away, some of the first people likely to notice these telltale signs of dementia are the senior’s own advisors—doctor, lawyer, or financial planner.  Unfortunately, these advisors often don’t always have the ability to take action.  Both doctors and lawyers, for example, are bound by patient or client privilege; even if they want to inform the family of their suspicions, they may not be able to.  Recent changes to Illinois State Bar Association Code of Ethics do allow an attorney to take action to protect a client when there is a reasonable belief that the client has become incapacitated and is in danger.  The American Medical Association also is not insensible to this issue, and has guidelines for dealing with patients who show signs of incapacity.  Unfortunately, doctors are under pressure to spend minimal amounts of time with patients.  Many people are able to ‘fake it’ during a short interview by doctors, lawyers, and financial advisors.  It is extremely important that the healthy spouse and/or responsible adult child get actively involved in pointing out to professionals any abnormal acts of vulnerability.  This may mean doing something that feels very uncomfortable, but is absolutely critical to get the protection needed.  No one will ever know what the family is seeing and experiencing at home unless you tell the story to your trusted advisors and friends.  It is dangerous to keep your fears a secret.  Almost everyone has a loved one who has been or will be affected by the progressive loss of decision-making capacity.

What can families do to recognize the signs of dementia and prevent the financial fallout that often results?  First of all, it should be a topic of family conversation early and often, long before Mom or Dad is at risk.  Talk about the possibility and how it should be handled.  Geriatric care managers and elder care lawyers welcome input from the entire family of their clients.  Familiarity with the entire family gives more options if signs of dementia do start to appear, and an atmosphere of open communication can go a long way toward preventing suspicion and family fights later on.  Attorneys need to know who among the family the client believes are their ‘honest and reliable adult children’ who may be able to safeguard family finances and provide ongoing care and attention to the situation.  Care managers will recommend how best to combine family resources with professional services.  Experienced elder care attorneys and care managers can help the family to plan for future financial and health care needs.  Most families underestimate both the financial impact, emotional burden, and care needs that will be required due to the dementia of a beloved member of the family.

Once a family has discussed options for the future and who might be the best person to take control of Mom or Dad’s finances in the event that they are unable, then an elder care attorney can assist them with the development of appropriate legal documents and Power of Attorney for financial decision-making.  These documents give a nominated agent the power to make financial decisions for the affected loved one.  The time to work on these plans is while the forgetful one still has sufficient capacity to make a Will, Trust, Power of Attorney for Health Care, Power of Attorney for Property, and any other estate protection plans.  Lawyers trained in this area of planning work to make sure that the healthy spouse is not excessively impoverished by long term care expenses.

The onset of Alzheimer’s or dementia affects the entire family, and should be discussed as an entire family.

Recently, at two different MCLE (continuing legal education) presentations, I spoke on the “Elder Law Essentials.”  The goal of the presentation was to distinguish the solutions of elder law vs. the solutions underlying traditional estate planning.

I was originally trained as a tax attorney, and my principal estate planning solutions were motivated by the client’s desires to:

• Minimize or avoid estate & gift tax costs; and
• Minimize or avoid probate expenses; and
• Minimize problems at the time of ultimate distribution to heirs/beneficiaries.

As an elder law attorney, however, the usual client motivation is the diagnosis of a long term illness.  This is illustrated by the life-changing call I received at my office almost ten years ago.  A family friend called me and she asked, “Rick, what are we going to do?  Bob has been diagnosed with Alzheimer’s disease.  Am I going to lose my home?  Are we going to lose EVERYTHING?”  There was panic in her voice.

In those days, I was not prepared to give appropriate answers.  I was a traditional estate planner—and she was not asking for a traditional solution.  She was asking me for answers to these questions:

• How are we going to maintain sufficient income?
• How are we going to pay for Bob’s health care needs?
• Will I ( the healthy spouse) be forced  move out of my home by health care expenses?

When someone asks these type of questions, elder law has the answers.  Our goal is to work with our clients to try to assist them to protect their income, obtain quality health care, and protect the marital residence for the healthy spouse.

If a traditional estate plan is not the right fit, please call us to discuss how we may be able to help you.

Rick Law

He looked into his wife’s eyes and flatly stated, “I’ll put a gun to my head before I ever go to a nursing home.”  But the sad truth is this:  His wife will be the one to bear the burden caused by his long term care needs and her own aging challenges.

This couple are frugal people who worked hard all their lives.  They lived on two Social Security checks, his modest pension, and minimal investments.  They were able to pay their bills and enjoy simple luxuries—until the out-of-pocket expenses of long term care begin to drain what they worked a lifetime to save.

His wife selflessly provides in-home care for her beloved husband, until eventually the day comes when her strength is not enough to pick him up or keep him from wandering away from home.  On that day, it might be a doctor, a discharge planner, or a policeman who looks into her eyes and speaks the harsh truth to her: “I’m sorry, ma’am. You can’t take care of him by yourself any more.”

This poor woman now faces a nightmare as she walks the elder care journey with a frail and declining husband.  First she learns that neither Medicare nor their health insurance provide any payment for home health care costs.  Later, when her husband must be relocated to a long term care facility, she discovers that neither Medicare nor Medicare supplemental insurance will pay the facility’s $3,000 to $8,000 monthly cost.

Quickly, she also learns that Medicaid is not available because she has “too much money.”   Her husband’s care will be offset by Medicaid only if she and her husband meet stringent income and asset limitations.  If they have assets over approximately $101,000, they must “spend down” their life savings, which Medicaid defines as “excess assets.”  When all excess assets have been spent on her husband’s medical care, then Medicaid will also control her monthly income.  She is restricted to $2,500 per month; any income above that must be used to pay for her husband’s care.

Later, when her husband dies, she receives more bad news.  She loses his pension, and as the “survivor spouse” she loses one of their two Social Security checks.  She has spent nearly all of their assets to provide for her husband’s care, and now she can’t even afford to live in her own home.  The nightmare of long-term care has left her impoverished and stolen her independence.

She will now face her own elder care journey alone.  She will not have the luxury of a spouse who will serve her as she served him.  No one will be there to dutifully care for her at home and to delay the day that she must move to a long term care facility.  She will not have the financial resources that he had, because Medicaid called them “excess liquid assets” and she spent those assets on his care.  As a single person, she will not be provided with assistance by the State of Illinois or the federal government until she has become impoverished to the point of a paltry $2,000 or less in total assets. The indignity committed against her does not stop there, for now she must sign over all her income to the nursing home as well, except for a miserly “personal needs allowance” of $30 per month.

The loving wife who faithfully cared for her husband is now out of money and out of options.  $30 per month will not even give her the privilege of having her hair done.  She is alone—and living the nightmare of long term care in America.

Illinois senior citizens may soon be punished by the State of  Illinois when they announce new Medicaid eligibility rules for nursing home (NH) and Supportive Living Facility (SLF) benefits. The goal is to save the state big money by creating new ways to deny fragile senior citizens assistive living or nursing home help. The state wants to impose harsh penalty periods of ineligibility for NH and SLF services for any Illinois senior has given away money or assets during the five years (60 months) prior to a Medicaid application.  Can you imagine being punished for helping your children and grandchildren?

Due to recent unemployment in the younger generations, Illinois seniors have paid loved ones’ medical bills, mortgage payments, tuition, and grocery bills.  Illinois Healthcare and Family Services (HFS) is about to implement rules which will punish seniors whose only “crime” is helping those they love.

The current Illinois Medicaid eligibility rules are fair and include a  “forgiveness factor.”  Seniors who give away money or other assets create an immediate Medicaid penalty period of eligibility. When  a senior is still healthy and/or wealthy enough to cover their own healthcare expenses the ‘penalty’ quickly goes away.  For example, if a senior gives away $10,000 to a loved one, within about three months the senior is “forgiven” for that gift.    BUT—

The new rules have no forgiveness factor. They will impose penalty periods of  ineligibility that will hang over a senior’s head for five years.  If you apply for Medicaid within five years after a gift, you will be punished with non-payment of Medicaid nursing home costs. This will happen even when the senior is ill and impoverished.  Both the senior and the long term care industry will be denied payments.  Can you predict what your health will be in five years?

Illinois must provide law-abiding seniors with fairness and a Medicaid forgiveness factor!

Illinois elder law attorneys have organized a DRA Task Force for Senior Fairness.  Ask Governor Pat Quinn and HFS Director Julie Hamos to be fair to Illinois’ frail senior citizens and long term care providers.  Contact Jessica Bannister at jessica@lawelderlaw.com to become involved!

(This post about our amazing veterans and Law ElderLaw’s dedication to helping them receive the benefits they deserve was first published in October of 2008. I am reposting this today in the hopes that it will help more veterans and their families find the aid they need.)

“Most of the men who hit the beach with me that day now lie under little white crosses. Some news guy wrote that if you landed on Iwo Jima in the first wave and you were not hit by machine gun fire, that it was as unlikely as running through a thunderstorm and not getting wet. There was nowhere to hide on that rock. It was like fighting on the moon. No trees, nowhere to find cover. There were so many of us that every time the Japanese fired, somebody got hit. During the first three days that I was on the island, I got a bullet-hole through my shirt, my helmet, and my pants.”

These are the words of my client Fred as he described to me the experience of going up against the Japanese forces who manned the island of Iwo Jima on February 19, 1945. Many of my veteran clients have amazing stories to tell from their days in the service.

As an attorney who is focused on the issues of the elderly, an important part of my practice is to assist wartime veterans who are now over 65 and disabled. We often assist them (pro bono) by securing a veteran benefit to help pay for care for themselves and/or their disabled spouses. I am honored to have the opportunity to serve those who have served their country so well.

Fred was in my office that day to discuss how he was going to pay the over $8000 a month cost of care for his wife, who suffered her first debilitating stroke eighteen years ago and has needed care ever since.

Fortunately for Fred, a wartime veteran does have the possibility of receiving some assistance through a VA Special Monthly Pension. It’s important to understand that Aid and Attendance or the Survivor Spouse VA benefit is only available to those who meet very stringent limitations related to medical necessity for care, and financial need as determined by both income and asset limitations. It is my job as an attorney to be able to assist individuals to evaluate what, if any, VA Aid and Attendance benefits may be available to them. This VA benefit can make all the difference in helping a wartime veteran or widowed spouse maintain their dignity, home, and lifestyle.

For more information click here to download any of our .pdf guides about VA Benefits.

Medicare and Medicaid sound the same, but they are as different as the two beauty queens you see here. Frankly, it’s surprising how many people don’t recognize the difference between the two.

Few people realize the limitations of Medicare—which winds up costing them a substantial loss of dignity if or when they get hit with long term care expenses. Medicare is the federal health insurance program provided on behalf of persons who are over the age of 65, blind, and/or disabled. Medicare does not provide long term care benefits (nursing home care, for instance). Medicaid, which is a poverty health care program, pays for 50% of the nursing home care in America today.

Medicare only cares about short-term or “acute care” health care. Medicare only cares about your health care expenses if you can get well! Medicare does NOT provide care when a person is diagnosed with a long-term illness and needs nursing home care. Essentially, our senior citizen health care is based on a “diagnosis lottery.” If you are “lucky enough” to have a heart attack or diabetes, then you are covered by Medicare. You are out of luck if you are diagnosed with Alzheimer’s, Parkinson’s, Huntington’s disease, or anything else that lands you in a nursing home. If you need a nursing home and you are not impoverished, you are on your own dime!

So, unfortunately for seniors, the blind, and disabled persons living in 2010, the acute care model does not help them when they are afflicted with long term care costs. Medicaid is the safety net for the impoverished. Once you become sufficiently impoverished, then Medicaid is designed to provide care for you. To qualify for Medicaid nursing home benefits you must be very ill and have no more than $2,000 total assets.

An elder law attorney knows the ins and outs of the public benefit system and can provide the client with solutions that help to fulfill the requirements of the law and still provide a better future for themselves or their loved ones. We help clients fulfill their legal obligations and avoid unnecessary impoverishment due to long term care expenses. If you want more information regarding a specific client situation, please contact us.