Medicaid and Powers of Attorney- Protecting the Elderly

1

Medicaid andPowers of Attorney- Protecting

the Elderly

Medicaid andPowers of Attorney- Protecting

the Elderly Shirley A. Cox MSW, JDShirley A. Cox MSW, JD

Legal Services DeveloperLegal Services DeveloperOklahoma Department of Human Services, ASDOklahoma Department of Human Services, ASD

2401 N.W. 23rd St. Ste. 402401 N.W. 23rd St. Ste. 40Oklahoma City, OK 73107-2422Oklahoma City, OK 73107-2422

(405) 522-3069(405) 522-3069(405) 522-6738 (fax(405) 522-6738 (fax))

2

Protective Services for Vulnerable Adults ActProtective Services for Vulnerable Adults Act 43A OS Sections 10-101 through 10-110 43A OS Sections 10-101 through 10-110

““Vulnerable adult" Vulnerable adult"

incapacitated personincapacitated person

substantially impaired in the ability to substantially impaired in the ability to provide adequately for the care of selfprovide adequately for the care of self

unable to manage his or her property and unable to manage his or her property and financial affairs, or to protect self from financial affairs, or to protect self from abuse, verbal abuse, neglect, or abuse, verbal abuse, neglect, or exploitation without assistance from exploitation without assistance from othersothers

Medicaid andMedicaid andPowers of AttorneyPowers of Attorney

3

Protective Services for Vulnerable Protective Services for Vulnerable Adults ActAdults Act

Person having reasonable cause to believe Person having reasonable cause to believe that vulnerable adult is suffering from that vulnerable adult is suffering from abuse, neglect, or exploitation shall abuse, neglect, or exploitation shall make report to:make report to:

– Department of Human Services; orDepartment of Human Services; or– Municipal police department or Municipal police department or

sheriff's office sheriff's office Includes - Person entering into transactions Includes - Person entering into transactions

with a caretaker or other person who with a caretaker or other person who has assumed role of financial has assumed role of financial management for a vulnerable adultmanagement for a vulnerable adult


4


Fraud TrendsFraud Trends

5


Fraud TrendsFraud Trends

• More than ¼ of consumers - 60 or More than ¼ of consumers - 60 or older – higher in certain fraud older – higher in certain fraud categoriescategories

• More crooks targeting U.S. More crooks targeting U.S. consumers from Canada or other consumers from Canada or other countries – makes it harder to pursue countries – makes it harder to pursue themthem

• Bank debits now most common Bank debits now most common method of paymentmethod of payment

6


Reasons Reasons • Older American citizens are Older American citizens are

most likelymost likely– to have a "nest egg," to have a "nest egg," – own their home and/or own their home and/or – have excellent credit all of which have excellent credit all of which

the con will try to tap intothe con will try to tap into• segment of the population most segment of the population most

likely to be in good financial likely to be in good financial positionposition

7


Reasons Reasons • Individuals from 1930s, 1940s, Individuals from 1930s, 1940s,

and 1950s - generally raised to and 1950s - generally raised to be polite and trustingbe polite and trusting

• Important/positive personality Important/positive personality traits, except when it comes to traits, except when it comes to dealing with a condealing with a con

• The con- exploits these traits The con- exploits these traits – Knows- difficult or impossible for Knows- difficult or impossible for

these individuals to say "no"these individuals to say "no"

8


ReasonsReasons• Older Americans -less likely to report Older Americans -less likely to report

fraudfraud – don't know who to report todon't know who to report to– too ashamed at having been too ashamed at having been

scammedscammed– do not know have been scammeddo not know have been scammed– concerned -relatives will believe no concerned -relatives will believe no

longer has mental capacitylonger has mental capacity

9


ReasonsReasons• Older Americans -less likely to Older Americans -less likely to

report a fraud report a fraud – Elderly victim often make poor Elderly victim often make poor

witnesseswitnesses• Con knows the effects of age on Con knows the effects of age on

memorymemory• Counting on fact -elderly victim Counting on fact -elderly victim

will not be able to supply enough will not be able to supply enough detailed information to detailed information to investigatorsinvestigators

10


CapacityCapacity

11


CapacityCapacity Capacity versus CompetencyCapacity versus Competency• Mental capacityMental capacity -by a health care -by a health care

professionalprofessional• CompetencyCompetency - legal - legal

determination by a court determination by a court • Evidence of incapacity -may be Evidence of incapacity -may be

used by judge to determine used by judge to determine legally incompetencelegally incompetence

12


CapacityCapacityIncapacityIncapacity versus versus Poor JudgmentPoor Judgment• Lack of capacity to make Lack of capacity to make

decision -not same as making a decision -not same as making a foolish decisionfoolish decision

• Going against medical advice- Going against medical advice- does not automatically signal does not automatically signal lack of decision-making capacitylack of decision-making capacity

• However- seemingly However- seemingly unreasonable decision/other unreasonable decision/other signs of incapacity - more signs of incapacity - more thorough capacity assessmentthorough capacity assessment

13


Capacity Capacity • In general, persons have In general, persons have

sufficient capacity to sufficient capacity to make decisions if make decisions if – UnderstandUnderstand

conditions/options available conditions/options available – Weigh risks/benefitsWeigh risks/benefits of of

possible courses of actionpossible courses of action– Appreciate likely Appreciate likely

consequencesconsequences of decision of decision– Communicate Communicate their their

decisionsdecisions

14


CapacityCapacity Assessment factors:Assessment factors:

– VariabilityVariability –state the same –state the same wish consistently?wish consistently?

– ReasoningReasoning –articulate the –articulate the reasoning behind reasoning behind decision?decision?

15

Medicaid PlanningMedicaid Planning


16

Medicaid PlanningMedicaid Planning

Unfortunately, many nursing home residents Unfortunately, many nursing home residents end up exhausting their assets on long-end up exhausting their assets on long-term care. But it doesn't have to be that term care. But it doesn't have to be that way. The best time to plan for the way. The best time to plan for the possibility of nursing home care is possibility of nursing home care is when you're still healthy. By doing so, when you're still healthy. By doing so, you may be able to pay for your long-you may be able to pay for your long-term care and protect assets for your term care and protect assets for your loved ones. How? Through Medicaid loved ones. How? Through Medicaid planningplanning. .


17

Medicaid PlanningMedicaid Planning• Medicaid planning by family membersMedicaid planning by family members

– often the root of financial abuseoften the root of financial abuse

• Common knowledge- Medicaid program Common knowledge- Medicaid program provides fundsprovides funds

• Media encourages "self-help plan“Media encourages "self-help plan“

– how-to's of qualifying elderly into being how-to's of qualifying elderly into being poor enough to become entitled to poor enough to become entitled to Medicaid benefitsMedicaid benefits

• Mistaken notion -Mistaken notion -""government will take" government will take" assets and incomeassets and income


18

Medicaid Medicaid JJoint federal-state program oint federal-state program • Provides health insurance coverageProvides health insurance coverage• Covers care in a nursing home for those Covers care in a nursing home for those

who qualifywho qualify• Medicaid- default nursing home insurance Medicaid- default nursing home insurance

of middle classof middle class


19

Medicaid Medicaid Countable assetsCountable assets

– < $2,000 in "countable" assets< $2,000 in "countable" assets

– "community spouse" -- limited to ½ of the "community spouse" -- limited to ½ of the couple's assets up to $109,560 (in 2011) in couple's assets up to $109,560 (in 2011) in "countable" assets"countable" assets

– If > $109,560, community spouse’s half of If > $109,560, community spouse’s half of resource in excess of $109,560, reallocated resource in excess of $109,560, reallocated to institutionalized spouseto institutionalized spouse

– $25,000 floor for community spouse$25,000 floor for community spouse

– Certain trusts w/exceptionsCertain trusts w/exceptions


20

Medicaid Medicaid Non-countable assets –Non-countable assets –

– Personal possessions Personal possessions – One motor vehicle- for medical reasons One motor vehicle- for medical reasons

4/year 4/year – principal residence -if equity < $500,000principal residence -if equity < $500,000– house -no equity limit if applicant's house -no equity limit if applicant's

spouse or dependent lives there/or if does spouse or dependent lives there/or if does not live there, still exempt for 12 months not live there, still exempt for 12 months if person plans to returnif person plans to return

– Resource spenddown- countable Resource spenddown- countable resources minus community spouse resources minus community spouse resources must be < $2,000resources must be < $2,000


21

MedicaidMedicaidNon-countable assets Non-countable assets • Irrevocable burial plans/life insurance Irrevocable burial plans/life insurance

(funeral expenses) < $10,000(funeral expenses) < $10,000• Face value of life insurance ($1500)Face value of life insurance ($1500)• Designated accounts for burial ($1500) Designated accounts for burial ($1500) • Property used in trade of or businessProperty used in trade of or business• Income producing property < $6000 and Income producing property < $6000 and

produces income < 6% produces income < 6% • Annuities – depends on annuity –Annuities – depends on annuity –

presumptions marketability (can be sold) presumptions marketability (can be sold) has value (discounted by IRS rules) has value (discounted by IRS rules)


22

MedicaidMedicaidTransfer Penalty Transfer Penalty

– Penalty for transferring assets < FMVPenalty for transferring assets < FMV– Look back period after 2/06 =60 monthsLook back period after 2/06 =60 months– Penalty- time ineligible for MedicaidPenalty- time ineligible for Medicaid– Penalty period -determined by dividing Penalty period -determined by dividing

amount transferred by average private pay amount transferred by average private pay cost of a nursing home in OKcost of a nursing home in OK

– e.g. -average monthly cost of care = $5,000, e.g. -average monthly cost of care = $5,000, give away property worth $100,000, give away property worth $100,000, ineligible for benefits for 20 monthsineligible for benefits for 20 months


23

MedicaidMedicaidExceptions to the Transfer Exceptions to the Transfer

Penalty- Penalty- To spouse, blind or disabled child, To spouse, blind or disabled child,

certain trusts for the benefit of certain trusts for the benefit of a blind or disabled, sibling, a blind or disabled, sibling, caretaker child caretaker child

Two major issues Two major issues

Amount of resources Amount of resources

Timing of transfer Timing of transfer


24

MedicaidMedicaidIncome – Income – • 300% of maximum SSI ($2022/month in 2011)300% of maximum SSI ($2022/month in 2011)• If > $2022 but < $3,000 -If > $2022 but < $3,000 -Medicaid Income Pension TrustMedicaid Income Pension Trust

• All income goes into trust All income goes into trust • $50/personal use$50/personal use• Pays medical insurance premium Pays medical insurance premium • Pays rest to nursing homePays rest to nursing home• Trust accumulates rest of income to be used for Trust accumulates rest of income to be used for

other approved costs other approved costs • When person dies, money left used to pay back When person dies, money left used to pay back

MedicaidMedicaid


25

MedicaidMedicaidIncome –Income –

• For married Medicaid applicants For married Medicaid applicants

– income of the community spouse not income of the community spouse not counted counted

– only income in applicant's name countedonly income in applicant's name counted

– even if community spouse still working, even if community spouse still working, will not have to contribute to the cost of will not have to contribute to the cost of care care

– Medicaid Income Pension Trust- Medicaid Income Pension Trust- availableavailable


26

Medicaid Planning Medicaid Planning – Objective-to preserve assets within Objective-to preserve assets within

familyfamily • Have government programs Have government programs

pay LTC costs pay LTC costs • Ensure children/grandchildren Ensure children/grandchildren

inheritanceinheritance• But, usually assets will not be But, usually assets will not be

expended on the elderly expended on the elderly person's careperson's care


http://covertheuninsured.org/stories/index.php?StoryID=42

27

Medicaid PlanningMedicaid Planning– Exploitation -generally, adult child Exploitation -generally, adult child

precipitates “self–help” scenario precipitates “self–help” scenario

• power of attorney -naming that power of attorney -naming that child as the attorney-in-fact child as the attorney-in-fact

• transfers elderly parent's bank transfers elderly parent's bank account, securities, and real account, securities, and real property into his/her own nameproperty into his/her own name

• Siblings then discover the transferSiblings then discover the transfer


http://images.google.com/imgres?imgurl=http://www.uwm.edu/Dept/CUTS/signs/elderly.jpg&imgrefurl=http://www.uwm.edu/Dept/CUTS/signs/&h=542&w=421&sz=47&tbnid=IC1DxpOEdyeESM:&tbnh=132&tbnw=103&prev=/images%3Fq%3Dphotos%2Belderly%26um%3D1&start=1&sa=X&oi=images&ct=image&cd=1

28

Medicaid PlanningMedicaid Planning• DPOA often digs his/her heelsDPOA often digs his/her heels

– refuses to accountrefuses to account

– refuse to acknowledge siblings refuse to acknowledge siblings interest interest

– Defeats inheritance rightsDefeats inheritance rights

• elderly parent tries to apply for elderly parent tries to apply for Medicaid < the five-year transfer Medicaid < the five-year transfer period has elapsedperiod has elapsed

• DHS denies eligibility DHS denies eligibility


29

Medicaid PlanningMedicaid Planning• Exploiter –may consult with Exploiter –may consult with

attorneys/other professionals for attorneys/other professionals for Medicaid planningMedicaid planning

• Fact that elderly not present ripe for Fact that elderly not present ripe for abuseabuse

• When competent elderly person seeks When competent elderly person seeks counsel, to accomplish Medicaid counsel, to accomplish Medicaid planning, attorney is duty-bound planning, attorney is duty-bound

– provide client with information provide client with information – assist to the extent requestedassist to the extent requested


30

Medicaid PlanningMedicaid Planning If person never speaks/ meets with the If person never speaks/ meets with the

attorneyattorney• no first-hand, direct knowledge of no first-hand, direct knowledge of

mental capacitymental capacity• conflict of interestconflict of interest• attorney is counseling third party attorney is counseling third party • Under Under Protective Services for Protective Services for

Vulnerable Adults ActVulnerable Adults Act, required to , required to reportreport


31

Medicaid PlanningMedicaid PlanningNot all Medicaid planning suspect Not all Medicaid planning suspect

Medicaid planning -can rearrange Medicaid planning -can rearrange finances-countable assets finances-countable assets exchanged for exempt exchanged for exempt assets/otherwise inaccessibleassets/otherwise inaccessible

• e.g. pay off the mortgage on family e.g. pay off the mortgage on family home, make necessary home home, make necessary home improvements and repairs, pay off improvements and repairs, pay off debts, purchase car for healthy debts, purchase car for healthy spouse, prepay burial expensesspouse, prepay burial expenses


32

Medicaid PlanningMedicaid PlanningPolicy questions Policy questions

• ultimate goal of society -ultimate goal of society -government pays?government pays?

• artificially planned indigence artificially planned indigence inappropriate, ever?inappropriate, ever?

• how much does Medicaid how much does Medicaid planning contribute to planning contribute to exploitation of elderly? exploitation of elderly?


33

Powers of AttorneyPowers of Attorney


34


• Powers of attorney- popular after Powers of attorney- popular after World War II -create simple device World War II -create simple device

• Fiduciary abuse- one of most Fiduciary abuse- one of most egregious methods of exploitationegregious methods of exploitation

• Fiduciary agent has legal Fiduciary agent has legal responsibility -by necessity responsibility -by necessity exercises considerable control over exercises considerable control over person and/or financesperson and/or finances

• Durable powers of attorney - Durable powers of attorney - interpreted narrowly/must be interpreted narrowly/must be explicit explicit

• Certain powers cannot be grantedCertain powers cannot be granted


35

Powers of AttorneyPowers of AttorneyTwo statutes in OKTwo statutes in OK • 58 OS Section 58 OS Section 1071 et. seq. Uniform 1071 et. seq. Uniform

Durable Power of Attorney Act Durable Power of Attorney Act (Probate)(Probate)

– Grant powers over health and Grant powers over health and medical decisions as well as property medical decisions as well as property and financesand finances

– signed by the principal, witnessed by signed by the principal, witnessed by two people who are at least 18 years two people who are at least 18 years old and not related to the principal or old and not related to the principal or to the attorney-in-fact by blood or to the attorney-in-fact by blood or marriage, and notarizedmarriage, and notarized


36

Powers of Attorney Powers of Attorney Effectiveness Effectiveness

Effective - upon Effective - upon signing signing Springing- Springing- certification- person certification- person no longer capable of no longer capable of making decisionsmaking decisions

Medicaid andMedicaid and


37

Powers of AttorneyPowers of Attorney15 OS Section 1001 et. seq. Uniform Statutory 15 OS Section 1001 et. seq. Uniform Statutory

Form Power of Attorney Act Form Power of Attorney Act (C(Contracts) ontracts)

– Provides standardized form-grant Provides standardized form-grant powers over property only (13 powers)powers over property only (13 powers)

– Principal can initial each power or Principal can initial each power or may initial one line- all powersmay initial one line- all powers

– Each power -defined in more detailEach power -defined in more detail– Does not need to be witnessed, but it Does not need to be witnessed, but it

does need to be signed by the principal does need to be signed by the principal and notarizedand notarized

–


38

Powers of AttorneyPowers of Attorney2003 national survey (among elder law2003 national survey (among elder law

professionals)professionals)

- - >70% consensus -power of attorney statute >70% consensus -power of attorney statute should includeshould include

– attorney-in-fact's fiduciary attorney-in-fact's fiduciary obligationsobligations

– whether attorney-in-fact can refuse to whether attorney-in-fact can refuse to act on a principal's behalfact on a principal's behalf

– how principal can revoke authorityhow principal can revoke authority– when third party can properly refuse when third party can properly refuse

to accept a power of attorneyto accept a power of attorney



39

Powers of AttorneyPowers of Attorney• But- delegation of authority takes place But- delegation of authority takes place

in privatein private• Reliance on child/friend Reliance on child/friend • Approaches to induce the trust of older Approaches to induce the trust of older

adultsadults– offer to provide advice about offer to provide advice about

investments, "let me handle investments, "let me handle everything”everything”

– marriagemarriage– coercioncoercion



40

Powers of AttorneyPowers of Attorney• fiduciary owes special duty to fiduciary owes special duty to

principalprincipal– act in his/her best interestact in his/her best interest– most unaware of the level of most unaware of the level of

conduct requiredconduct required– Oklahoma - requires power of Oklahoma - requires power of

attorney to state that attorney-attorney to state that attorney-in-fact owes fiduciary dutyin-fact owes fiduciary duty



41

Powers of AttorneyPowers of Attorney• Fiduciary duty Fiduciary duty

– Agent- must keep the elder Agent- must keep the elder informedinformed

– Agent may gain profit only if Agent may gain profit only if informs and gets consentinforms and gets consent

– Agent may not acquire Agent may not acquire interest adverse to the elder or interest adverse to the elder or reap a secret profitreap a secret profit

– Agent may not transfer the Agent may not transfer the elder's property self (or to elder's property self (or to others) unless power others) unless power specifically conferredspecifically conferred



42

Powers of AttorneyPowers of Attorney• DPOA can be a useful planning tool, but DPOA can be a useful planning tool, but

virtually unregulated within legal systemvirtually unregulated within legal system– No termination-can last a long time No termination-can last a long time – No requirement of attorney No requirement of attorney – No filing with local court requirementNo filing with local court requirement– No prerequisite -agent notify the No prerequisite -agent notify the

principal when authority exercisedprincipal when authority exercised– No periodic accountings by the agent No periodic accountings by the agent

requiredrequired– Effect of conveyance of assets under Effect of conveyance of assets under

DPOA as exploitation and denial of DPOA as exploitation and denial of Medicaid eligibility -enforceable rightMedicaid eligibility -enforceable right



43

Powers of AttorneyPowers of Attorney• Prior to execution – Prior to execution –

Coercion/trickery in signing Coercion/trickery in signing documentdocument

• Subsequent to execution - Three categories Subsequent to execution - Three categories of abuse of abuse

– Transactions exceed intended Transactions exceed intended scope of authority e.g gift scope of authority e.g gift giving, sale giving, sale

– Transactions involving self-Transactions involving self-dealing dealing

– Transactions in contraventions Transactions in contraventions of expectations e.g. gift giving of expectations e.g. gift giving that defeats estate planning that defeats estate planning



44

Signs of Financial Signs of Financial ExploitationExploitation



45

The Signs of Financial ExploitationThe Signs of Financial Exploitation• Numerous cash withdrawals from older Numerous cash withdrawals from older

adult’s checking account in short period of adult’s checking account in short period of time, especially if inconsistent with time, especially if inconsistent with previous spending habits previous spending habits

• Signatures on checks, wills, powers of Signatures on checks, wills, powers of attorney or other documents that look attorney or other documents that look forged, unusual or suspicious forged, unusual or suspicious

• Checks used out of numerical order Checks used out of numerical order • Reports by older adult that funds are Reports by older adult that funds are

missing from account missing from account



46

Signs of Financial ExploitationSigns of Financial Exploitation • Someone encouraging, pressuring, or Someone encouraging, pressuring, or

coercing older adult into coercing older adult into withdrawing large sums of cash withdrawing large sums of cash

• An older adult applying for several An older adult applying for several new credit cards new credit cards

• An unexpected increase in ATM or An unexpected increase in ATM or credit card usage by older adult credit card usage by older adult

• An older adult failing to understand An older adult failing to understand recently completed financial recently completed financial transactions transactions



47

Signs of Financial ExploitationSigns of Financial Exploitation• Having credit card statement sent to Having credit card statement sent to

someone other than older adult named on someone other than older adult named on account account

• Unexpected or unexplained changes by Unexpected or unexplained changes by older adult in account beneficiaries, older adult in account beneficiaries, property titles, deeds or other ownership property titles, deeds or other ownership documents documents

• An older adult refinancing mortgage An older adult refinancing mortgage



48

Signs of Financial ExploitationSigns of Financial Exploitation• Abrupt and unexpected changes in Abrupt and unexpected changes in

will, trust, power of attorney, or will, trust, power of attorney, or other legal document other legal document

• An older adult unexpectedly and An older adult unexpectedly and uncharacteristically unkempt, uncharacteristically unkempt, forgetful, disoriented forgetful, disoriented

• Older adult unexpectedly not Older adult unexpectedly not meeting financial obligations: food, meeting financial obligations: food, utilities, rent, or mortgage utilities, rent, or mortgage paymentspayments

The EndThe End



Medicaid and Powers of Attorney- Protecting the Elderly

Documents

Transcript of Medicaid and Powers of Attorney- Protecting the Elderly