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!

Photo by Lisa Wiltse of the Sydney Morning Herald

This is a reprint of a blog post originally published November 7, 2008.  Although almost 2 years have passed, many parents of disabled children still live in fear of what will happen when they can no longer serve as primary caregiver for their child.  We hope that reprinting this blog post will help  these parents understand their options for the future, and bring them some peace of mind.

My wife and I have almost reached the empty-nester stage. We look forward to that event with excitement, and a little anxiety too. We have raised four children, ranging in age from 32 to 17. After such a long run in parenting minors, it’s time to move on to that more senior stage referred to as being an empty-nester.

Not everyone becomes an empty-nester. And although we sometimes joke about the child who “failed to launch” due to the inability to get a career, there’s another group of parents who will never know the joy of seeing their child be fully self-supporting. In my office it is not uncommon for me to sit across the table from an 83 year old parent who is still the primary caregiver for a child who is chronically disabled. Those parents live in dread of the day that they will die and their children may survive them and face a future without the loving protection of a parent.

This is the first time in human history that parents face the possibility of having their chronically disabled children actually outlive them. Prior to the introduction of antibiotics and many other great advances in health care, chronically disabled children routinely died at a young age. But now, even parents who have lived to become the frail elderly themselves may have chronically disabled children who are themselves senior citizens, but who are still at home being cared for by their parents. In fact, sometimes when we assist families in bringing in a professional caregiver for the aged parents, those same caregivers are providing necessary services to the child with the disability, as well. This raises new challenges for those parents and their children.

This type of disability is really quite common. “Developmental disabilities” are severe chronic conditions caused by mental and/or physical impairments. Individuals affected by such challenges may be so profoundly impacted that they will never be able to function independently. Most of these physical and mental issues are in evidence long before a child reaches the age of 22. These disabilities will last the lifetime of the affected person.

So how can a parent be assured that a disabled child will be taken care of after the parent is gone? Some attorneys will recommend that you leave everything to another, non-disabled child, to care for the disabled sibling. This passing of the torch is unfair and in many ways ill-advised. Far better is the creation of a special needs trust specifically for the benefit of your disabled child. Click here to learn more about special needs trusts, and discover exactly why “passing the torch” is a bad idea.

From right to left: Christ Jarot, Diana Law, Rose Law, Rick Law, Hillary Peck, and Kerry Peck

Recently, Kerry Peck of the law firm of Peck Bloom LLC and his wife Hillary invited us to join their table for the Alzheimer’s Association’s Rita Hayworth Chicago fundraising gala.  I am unaccustomed to attending formal black-tie events, but this one was worth the effort.  Princess Yasmin Aga Khan is the gala’s general chair.  Princess Yasmin is the daughter of the 1940s-1950s screen star and pinup girl Rita Hayworth and Prince Aly Khan.

Rita Hayworth was the first “reel life” glamour star to become a “real life” princess.  (Grace Kelly was the second.)  Unfortunately, in 1981 Rita was diagnosed with Alzheimer’s Disease.  In those days very little was known about both the illness and proper caregiving.  Yasmin left her career as an opera singer to become her mother’s conservator and chief caregiver.  Following her mother’s death, Princess Yasmin dedicated herself to honoring her mother’s memory by promoting awareness of Alzheimer’s Disease and fundraising in the hope that one day there will be a cure.  The annual Rita Hayworth galas, which are held in Chicago, New York, and Dallas have raised millions of dollars.

The theme of the event was “The World is a Circus” and featured acrobats, jugglers, and Cirque du Soleil style acts.  For Rose and me, it was a true joy to attend this fundraiser with our great friends Kerry and Hillary, our daughter and son-in-law Diana Law and Chris Jarot, and other friends of the Pecks.

After dinner we danced until 11, when the raffle winners were announced.  Much to my amazement, my wife Rose and my daughter Diana were both “major award winners”! Seriously, there were over 500 people in attendance and only five raffle prizes.  Rose won #4 and Diana won #5.  I feel like a winner, too!  It is my honor to have attended this event the Pecks and their dear friends.  Thank you, Kerry and Hillary!

Please consider joining us in donating to find a cure for Alzheimer’s Disease.

Sunday morning traffic jam, Crawford Colorado

I had just checked into the Crawford Country Store and Motel—a combination convenience store and motel in Crawford, Colorado.  I had chosen to live at this clean and basic lodging during a five-day horse training clinic on the western slope of the Rockies.  After I found and entered my room, I dropped my bags and headed for the bathroom.  I walked in, turned to my right, and flipped the light switch—nothing happened.  “The light bulb must be burned out,” I thought.  I tried again—and nothing.  Well, I hustled back downstairs to the country store area and told the folks behind the counter that my bathroom light did not work.  A young man looked at me, chuckled, and said, “You need to flip the switch behind the towel.”  My jaw dropped and I asked, “There’s a switch behind the towel?”  He assured me that there was, as he had just used it that morning when he cleaned the room.  Shaking my head and wondering about whomever had decided to install a towel rack over a light switch, I went back upstairs to see if this was really true.  I put my hand behind the towel and felt a switch.  Bingo, the light turned on!

I thought about this for a moment…  I had a low opinion of the decision to place a light switch “behind the towel”—but then it reminded me of how often in life the real answer to something is hidden from us.  The obvious answer is often not the right answer—this is why we need to find those professional counselors, health care providers, and lawyers who know where to find the light switch we need.

Imagine for a moment that you suddenly have a diagnosis of some grave physical ailment.  You would most likely consider immediately hustling off to see experts places such as the Mayo Clinic or the Cleveland Clinic.  Another example: even though we are lawyers ourselves, we often hire other lawyers to give us advice in specific legal problem areas.  When we need to hire a lawyer, we seek out an experienced practitioner with a proven record.  You see, when I need an attorney, I want the best!  We don’t just hire the first person who says, “I’m sure I can take care of you, but I’m going to have to do some research in the area first.”  We hire legal counselors and refer our clients only to attorneys who can readily say, “Oh yes, we handle situations like yours every day.”  Those legal advocates know where the hidden light switches have been placed.

When it comes to dealing with the issues of the frail, elderly, and disabled, Law ElderLaw knows where those hidden light switches are.  Our areas of concentration are elder law estate planning, disability, Medicaid, and V.A. long term care benefits.  Our outstanding Law ElderLaw team turns on the lights for our clients every day!

Atty Brian Rubin and his son Mitch

He looked directly at me and softly said, “Every day I pray ‘the parent’s prayer’—that Mitchell has a long, healthy life, but that Linda and I live just one moment longer, so that no one else ever has to take on the enormous responsibility of caring for our special needs child.”

I was interviewing attorney Brian Rubin of Buffalo Grove, Illinois, who focuses on estate planning and advocacy for clients and families who struggle to find the right answers for their child with special needs.

I recently met Brian when I was invited to join the Special Needs Alliance (SNA).  My own law practice is focused on serving seniors who have either a long-term illness or an adult child with a disability.

He went on to tell me, “My adult life started out fairly normally. After college, I  worked for a large CPA firm, then went to law school at night, and worked for the IRS by day.  I have always had to wear more than one hat.”

Brian, and his wife Linda, never planned to have a law firm which focuses on Special Needs Future Planning—but life often takes an unexpected turn.  In January of 1981, their son Mitchell was born.  When Mitch was five months old, Linda told Brian, “There is a problem.”  Brian says the truth of that statement was the beginning of his going through “the stages of special needs grief”:  denial, self-blame, and doctor-hopping.  Mitch has autism, among other diagnosed special needs.  It soon became apparent that Brian needed to quit his downtown Chicago law practice and stay closer to home.  He also wanted to provide appropriate legal guidance and advocacy for his family and others who faced the same issues.  “In those days, almost no one was doing any special needs trusts and benefits planning.  I was one of the pioneers in Illinois.”

Brian struggled to balance the demands of a law firm and his passion to serve the community of the disabled from 1987-2001.

When Mitch reached 18 years of age in 1999 and became eligible for health care through Medicaid, Brian began thinking about opening a law firm which would be 100% devoted to the laws, regulations, and benefits that both frustrate and support clients with disabilities and their families.  Brian opened the doors of The Law Offices of Brian Rubin and Associates in 2001.  The firm provides more than just estate planning and special needs trusts.  Brian says, “Illinois has a very splintered benefit system.  There is no single door of entry, so families are constantly hitting roadblocks.  For example, our son Mitchell’s area of autism does not specifically fit in any one legally defined area.  He needs a variety of services, but no one agency supplies them as one package.  It’s my job as attorney and dad to discover how to get Mitchell the benefits that he needs.  We provide that same type of advocacy for our clients.”

He further explained, “We have found that the government does not tell people the whole story.  Our job as legal advocates is to tell the whole story and to help get appropriate services and residential environments.  We cannot do everything—but we act as the quarterback to get the financial advisor, psychiatrist, health care professionals, education providers, and caseworkers to collaborate to achieve the needed results.”

In closing, Brian shared this: “Mitchell has allowed me, Linda, “big sister/assistant mom” Nicole, and “little/big brother” Benjamin to better appreciate what’s truly important in life… and what is not so important.”

Brian Rubin has created a website (www.brianrubin.com) which is filled with helpful information.  In addition, he makes public presentations frequently throughout the Chicago metropolitan area and Illinois.

The Rubin Family: Benjamin, Mitch, and Brian in back; Nicole and Linda in front

He is 80 years old but looks like mid-60s.  When I told him that, he remarked, “Thanks, but the old noodle is giving out.  Doctor says I’ve got dementia.”  His wife nodded in vigorous affirmation.  She added, “He goes to the store with a list, but always messes it up.”  She was not trying to be hurtful—rather, she just wanted me to know how things really sit.  This time, he nodded in animated agreement.

They have been clients for years, and they had urgently called to “get their affairs in order.”  He has his brain scan results, and she has emphysema and COPD.  She has already signed a DNR for herself.

As I listened to the facts, she threw me a bombshell.  “I heard about the five-year Medicaid look-back rules, so I cashed in my IRA and gave $10,000 to each of our four adult children.”  I gulped and said, “That was a mistake.  Based on what you have told me about your health and your assets, it is highly likely that one of you will need nursing home care before 2015.  Your gifts to your children will create a six- to eight-month penalty period of ineligibility for Medicaid nursing home benefits.

She asked, “What should we do?”

I answered, “You should call your family members and tell them that you made a mistake and to please give you back the money.”

Her look told me that she would never do that.

Her husband said, “We screwed up, huh?  We should have called you first.”

Most elderly clients who give away money due to a medical crisis will need long-term care within a short period of time.  If you know a client or a client family member who is thinking about giving away assets “to protect them from being lost to nursing home expenses,” please tell them to call an elder law attorney first.  Our firm can be reached at 630-585-5200 or rick@lawelderlaw.com

How do you think you would feel if you could not remember a time that your father or mother did not have memory issues?  John Remaly was only nine years old when his dad was diagnosed with Young Onset Alzheimers.   He and his sister Alyssa have grown up adjusting to the gradual loss of their dad’s memory and ability to care for himself.

I spoke to John and his mom, Melinda, and asked them to share with me some of the trials and victories that they have experienced during the last few years.  John told me that in his family, they have worked together to provide a united front to withstand Alzheimers’ attack on their family happiness.  “Most people, when dealing with something like this, start to fight and blame each other.  We have decided to use our gift of humor to find creative ways to work with my dad.”  He went on to share with me that his father, Rick Remaly, has always been a guy who loves the quick one-liner jokes and over-the-top comedy.  He says that the family enjoys shows like Will and Grace, Everybody Loves Raymond, and Family Guy.  John and his sister Alyssa love theater and acting, and they have memorized sketches from the different shows, complete with script, dialogue, jokes, and timing.  This helps keep their father engaged and laughing.  John quickly added, “Dad can still catch ‘quick humor’ and he is very easily amused.  In fact, one evening when he was feeling low, I decided that he and I should have a little fun and put calcium tablets in our mouths.  Do you know what happens when you put calcium tablets in your mouth?  It doesn’t hurt you, but you foam like a rabid dog!  Dad and I could not stop laughing.”

Melinda added that life at home is not always humorous and that John has had to take on the role of being an adult and a caregiver for his father.  She admires the way John works with his father.  Rick seems to take direction better from John than anyone else.  “When you’re dealing with Alzheimers, you need to work together as a family and be open to sharing with loved ones and co-workers.  You need to be truthful in keeping people informed about the real situation at home.”  She went on to say that it’s very important to be able to go out with friends and to have support systems.  In fact, one of the key principles in helping the Remalys stay emotionally healthy is recognizing that from time to time, you have to get away from the caregiving at home.

The Remaly family is about to embark on a new phase of life.  John Remaly has applied to, and been accepted at, Bradley University in Peoria, Illinois.  His dad and mom will be losing one of the pillars that support being able to provide for Rick at home.  John wrote a college admissions essay in October 2009 which detailed his experiences in growing up with Alzheimers.  The entire text is available by clicking on this link: John Remaly’s College Admissions Essay

In both October 2008 and October 2009, Melinda Remaly organized a group to participate in the Alzheimers walk in Libertyville, Illinois called “On the Move for Alzheimers.”  Each year the family, friends, and John’s friends from school walked together to raise funds for Alzheimers research.  All the friends and family members wore t-shirts that said. “Walk for Rick.”  On the back of Mr. Remaly’s  t-shirt it said, “I am Rick.”

We here at Law ElderLaw are grateful that the Remaly family has chosen us to be their legal advocates.

Nunca te Detengas  (Never Stop Yourself)
The Words of Mother Teresa of Calcutta

In February, when I was in Central America, I was given a brochure which celebrated Costa Rican retirees and their value to their country.  I translated the inspiring Spanish language message, which quoted the words of Mother Teresa of Calcutta.  I have never seen any comparable message sent to retirees here in the United States, so I want to honor my fellow senior citizens with this message. Yes, I too qualify for the senior discount coffee at McDonald’s without asking for it!  In addition, I have noticed that my lovely and still youthful-looking wife Rose requests the senior discount at the movie theater.  (Shhhh—please don’t tell her I told that I told you!)

The brochure said this:

Our retirees are an important reason that our country is a wonderful place to live.  We celebrate all senior citizens and older adults.  Thank you for constructing a better country.  Please read these words of encouragement by Mother Theresa:

Never Stop Yourself

Always keep in mind that your skin will wrinkle and that your hair will go white and that your days will become years…  But the most important thing never changes—your  strength of will and your convictions don’t have an age limit.  Your spirit is like a feather duster to wipe away the cobwebs.

After every arrival there is a leaving.  After every accomplishment there is another challenge.  While you are alive, feel and know that you are alive.

When you are feeling sorry for yourself about what you used to be able to do, do something new.  Don’t live surrounded by the yellowed photos of yesterday.  Continue forward, even though you feel abandoned by others.  Don’t let rust take away the steel that is in you.

Behave in a way that others respect you, not pity you.

When, due to your years, you cannot run—trot.  When you can no longer trot—walk.  When you can no longer walk—grab a cane and keep on going.

Never stop yourself.

She said it all.