New Year Ushers in New Illinois Law Authorizing Electronic Monitoring in Long-Term Care Facilities

January 6, 2016

Happy New Year!  In addition to New Year’s resolutions and newly created “to do lists,” the New Year typically brings with it the implementation of new laws.   The year of 2016 is no exception here in Illinois.  One of the new Illinois laws (effective January 1, 2016) which may be of particular interest to those residing in, or who have loved ones residing in, long-term care facilities is HB 2462.

HB 2462 created the Authorized Electronic Monitoring in Long-Term Care Facilities Act. This act provides that, subject to certain conditions, a resident of a facility licensed under the ID/DD Community Care Act or the Nursing Home Care Act shall be permitted to use an audio or video surveillance/monitoring system in his or her room at his or her expense. The implementation of this new law is designed to help to protect Illinois’ most vulnerable residents from potential abuse and neglect.  In addition to bearing the costs of the electronic monitoring system, there are numerous other conditions set forth within the act with which residents using monitoring systems must comply, including but not limited to:  the resident (or their representative) must consent to the use of the electronic monitoring in the resident’s room; the consent of any other person residing in the resident’s room must obtained; the facility must be notified of the resident’s intent to use a recording device and the type of the device that the resident will be using; the device must be in an open fixed position; and there must be a sign posted outside the resident’s room, which states, “This room is electronically monitored.” Additionally, the act imposes certain requirements with which long-term care facilities must also comply.  The act also prohibits facilities from discriminating and/or retaliating against a resident who uses a monitoring system; and establishes criminal penalties for a person or entity that knowingly hampers, obstructs, tampers with, or destroys an electronic monitoring device.  Although HB 2462 took effect on January 1, 2016, the Illinois Department of Public Health has an additional 60 days to prescribe the notification and consent form required by the act.

If you, or your loved one, resides in Illinois and you would like additional information regarding the specific details of the Authorized Electronic Monitoring in Long Term Care Facilities Act; and/or you would like to meet with one of our attorneys regarding other elder law issues, estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate and/or guardianship matters, please contact our office at 630-844-0065 to schedule an appointment.  The Elder Law Center, P.C. is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

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That Time of Year

December 3, 2015

 

It is, once again, that time of year.  The time of the year where we find ourselves saying, “I cannot believe that it is December already.  Where did 2015 go?”  Some of us are busy reviewing the list of New Year Resolutions we made for 2015.  For many, our 2015 list of resolutions has become our 2015 “to do” list, which we will carefully scan to determine what remains to be accomplished.  We may find ourselves eager to complete the remaining tasks on our lists, so that we can happily cross them off our lists.  Others, who never made such a list, may now find themselves creating, and scrambling to complete, a newly created “to do” list, before 2015 is but a memory.

If you have such a list and if reviewing your current estate and life care plan is already on your list, then give yourself a pat on the back for proactively thinking about your planning.  If you have created both an estate and life care plan and reviewing your current plan is NOT on your “to do” list, we encourage you to add it to your list. If you have such planning in place, pull it out now and review it.  Ideally, absent an intervening life changing event, individuals will get into the habit of reviewing their estate and life care plans on an approximately annual basis.  As such, putting it on your annual “to do” list each year may help keep you on track.   Regardless of whether reviewing your planning is already on your list; whether you are adding it to your list now; or, whether you have no list and you are now going to make it a “to do” item, we encourage you to not delay.

When reviewing your current estate and life care planning documents, we recommend that you keep the following information in mind.  Since you originally created your planning, there may have been changes in the law which may have impacted your planning.  The attorney that assisted you in creating your estate and life care plan, most likely, was not permanently retained to keep you advised of all law changes that may potentially affect your planning.  Typically, the attorney/client relationship ends when the preparation of the plan has been completed and the attorney has closed your file; and thus, there is not an ongoing obligation to continue to advise you of law changes.  As such, we strongly encourage and recommend that you (and an attorney acting on your behalf) periodically review your planning documents to be certain your planning remains consistent with your wishes and remains appropriate for you.  Additionally, we suggest you review your planning documents anytime you experience a life-changing event or significant change in your financial circumstances, even if you just recently completed your regular, periodic review.  In Illinois, if changes to the documents are needed or desired, mark-outs or interlineations on the original documents will NOT be effective; and, any changes that you wish to make to your planning MUST be properly executed and witnessed to effectuate the change you desire.

If you do not have such planning in place, and this post, along with the hustle and bustle of the end of the year, has motivated you to add creating an estate and life care plan to your “to do” list and to move forward with your planning, then you too should give yourself a pat on the back.  As we like to say at our office, there is no time like the present to move forward with creating your estate and life care plan.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, Medicaid eligibility for long-term care, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website:http://www.elderlawpc.com.

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Social Security Retirement Benefits: A Not So Simple Decision

October 12, 2015

For those of you who will soon be eligible to start receiving Social Security retirement benefits, you are probably already acutely aware of the decision that lies before you.  That decision, of course, is when is the best time for you to start collecting benefits.   You are wondering whether you should start collecting your benefits at age 62; whether you should wait until your full retirement age; whether you should file and suspend, etc.  If you are married, then this decision is even more complicated and the range of options before you and your spouse increases significantly.  You have probably begun to receive mailers for workshops where planners will be on hand to help you make that determination.  In addition, you may have engaged in internet research and discovered the plethora of articles on the topic, as well as a vast number of Social Security retirement benefit calculators promising to give you the magic answer that you seek.   After having engaged in my own personal research and educating myself on this very important topic, and after having had the pleasure and privilege of attending a presentation by the extremely knowledgeable and highly regarded Social Security guru, attorney Avram Sacks, at the IL-NAELA “Unprogram” on October 3, 2015, I have come to the following conclusions:

  • This decision is anything but simple;
  • There is no “one-size fits all” answer;
  • Not all benefits calculators are alike, as not all calculators will necessarily take into consideration all relevant and pertinent factors impacting this decision;
  • Not all benefits calculators offer “error” free results;
  • Certain decisions cannot be undone; and,
  • Absent a working crystal ball, any decision one makes will ultimately incorporate certain variables that will be based upon the best available information regarding health, expected longevity, future earnings, anticipated taxes, etc., which in the end may prove to have been based on incorrect assumptions.

So what is one to do improve their chances of maximizing these benefits for the remainder of their life?  Quite simply, our office recommends consulting a knowledgeable and highly-regarded Social Security guru, before making any final decisions.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, Medicaid eligibility for long-term care, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website:http://www.elderlawpc.com.

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Resource for Information on Free and Low Cost Medication Programs

October 5, 2015

If you follow our office on Twitter, then you know that both Katie Lenert and I recently attended the Illinois Chapter of the National Academy of Elder Law Attorneys IL-NAELA “Unprogram.”   Kudos to Katie Lenert and the others on the committee for putting together, yet, another fabulous continuing education program for elder law attorneys.   The program was chocked full of both interesting tidbits and substantive information, some of which we thought may be of immediate value to our clients, friends, and/or readers of our blog.   Accordingly, here is one piece of information that we wanted to share right away.

For those of you looking for information about free and low cost medication programs, visit:

www.rxassist.org

In addition, some may also find RxAssist helpful in providing useful information about other ways to manage medication costs.

Be sure to check back for more tidbits and information from IL-NAELA’s “Unprogram.”

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, Medicaid eligibility for long-term care, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website: http://www.elderlawpc.com.

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Happy National Healthcare Decisions Day

April 16, 2015

 

Whether you have already created an advance directive (or advance directives) for your healthcare, or not, National Healthcare Decisions Day is the perfect day to take a minute to consider your wishes regarding your healthcare.  As long as you remain competent, you will be able to make your own healthcare decisions.  What happens, however, if you become incapacitated?  How will your healthcare decisions be made and who will make them for you?  The good news is that you have the ability to be pro-active and create a document, often referred to as a Healthcare Power of Attorney, that will allow others (who you choose) to make healthcare decisions for you.  In addition, you may also choose to create other documents to inform your healthcare providers of your specific wishes, regarding particular healthcare circumstances that may later arise.  If you do not have a Healthcare POA in place, then now is the perfect time to consider creating one for yourself.

If you already have a Healthcare Power of Attorney (POA), in place, then give yourself a pat on the back.  By creating a Healthcare POA you have taken a very important step with regard to future healthcare decisions for yourself, should you later become incapacitated and unable to make your own decisions.  Even though you may have already created a Healthcare POA, National Healthcare Decisions Day is the perfect time to review your POA (and/or other healthcare advance directives), particularly if it has been years since you have last looked at your POA.  If you have not reviewed it recently, are you sure that it still accurately reflects your wishes?  When you do review it, to be sure that it still reflects your wishes, also check to be sure it includes successor agents.  Designating successor agents means that should your first named agent be unable to act on your behalf, there is a better chance that there will be someone else in place to act as your agent.  With regard to the people that you have designated as your agent and successors, do they know that you have done so, and do they know where you are storing the original and/or copies?  Failing to let the people you have designated as your agent and successors know that you have done so, and/or failing to let them know where to find your Healthcare POA if needed, will be fatal to your Healthcare POA working as you intended it to work, in the event of your incapacitation.  Assuming that you have informed your agent and successors that they have been so designated and they know where it is stored, have you also talked with these persons to further explain your wishes?  While advance directives allow you to give written directions to the people you are naming to act on your behalf, it is still important to have a conversation with those so designated to fully explain your wishes and philosophies with regard to your health and healthcare decisions.  Having periodic conversations with your agent and successors is, likewise, recommended to be sure these people remember your wishes and to be sure that they are aware of any changes in your wishes or philosophies, which may have evolved over time.

The available advance directive options for healthcare will vary from state to state.  Thus, it is important to seek advice regarding the options available to you in your state.  If you reside in Illinois and would like information and/or assistance in creating a Healthcare Power of Attorney (POA), or you would like to have your current POA reviewed, contact our office at 630-844-0065 to schedule an appointment.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

Our office is, also, available for consultation regarding estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate, guardianship matters, and/or other elder law issues.  The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.  Our office can be reached via telephone (630-844-0065) or email through our website: http://www.elderlawpc.com.

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Elder Law Update: “Mr. Cub’s” Will is Confirmed by a Cook County Judge

April 9, 2015

The contested will of Ernie Banks was confirmed by a Cook County Judge on March 31, 2015, with the Court finding that Mr. Banks was of sound mind when he executed a will on October 17, 2015 that left all of his assets to his longtime caregiver.  Mr. Banks’ family contested the will, arguing that he was not competent when it was executed and was coerced by the caregiver into leaving her all of his assets, rather than to his estranged wife and children.  In upholding the will, the Court heard testimony from two paralegals who witnessed the will’s execution and who testified that he seemed of sound mind and not under any constraints.  Whether the battle over the will is truly over remains to be seen as the media reports that Mr. Banks’ wife may pursue an appeal of the decision.

For more information on testamentary capacity, estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate and/or guardianship matters, or other elder law issues, please call the Elder Law Center at 630-844-0065 or contact us via email. The Elder Law Center, P.C.  proudly serves clients throughout Illinois and is located in Aurora, IL,  in the Chicago Western Suburbs.

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Dispelling a Common Misconception:  Annual Gifts do NOT Qualify as an Exception Under the Strict Medicaid Transfer Rules

March 30, 2015

At our office, we frequently meet with clients regarding long-term care planning.  Many times these meetings include counseling clients regarding the Medicaid eligibility rules for a long-term nursing home stay.   (A full discussion of the Medicaid eligibility rules is beyond the scope of this post, as the rules are complex and vary from state to state.)   During these meetings, it is not uncommon for clients to make the following statement, “I know that I can gift $14,000 per year per person, without any negative consequences, if I have to apply for Medicaid.”   Most of these folks are quite surprised when we advise them that their understanding is incorrect and simply NOT true.  

Pursuant to the federal law regarding Medicaid eligibility for long-term care stays at a nursing home, there is a sixty (60) month look-back period in which ALL transfers made by the Medicaid applicant will be strictly scrutinized.   When transfers made during the look-back period are reviewed, a penalty period will be imposed for all “non-allowable” transfers.  A “non-allowable” transfer (made during the look-back period) is a transfer for which there is insufficient documentation to support that the applicant, or his/her spouse, received either  resources or services approximately equal to the fair market value of the amount transferred.  There are “exceptions” to the transfer rules, which may result in certain transfers being treated as “allowable,” even when the transfer was not made for fair market value.  However, nowhere in the Medicaid eligibility laws, rules, and policy provisions, as applied in Illinois, is the transfer of $14,000 per year per person included as an “allowable” transfer.  Thus, pursuant to the Illinois Medicaid eligibility rules, unless an annual gift (made during the applicable look-back period) fits into one of the “exceptions,” the gift will NOT be “allowable,” and it will result in a penalty period being imposed.

The genesis of this misconception is easily explained.   It is the result of confusing the federal gift tax laws with the Medicaid eligibility laws and rules.  According to the IRS, the federal annual gift tax exclusion rules provide that, in 2015, an individual may gift up to $14,000 per year per person without the annual exclusion gifts counting towards the individual’s lifetime gift exemption. This rule, however, is limited solely to the federal estate and gift tax laws, and unless the gift fits into one of the stated “exceptions” for transfers made during the look-back period, it will NOT qualify as an “allowable” transfer under the Medicaid eligibility rules.

Quite simply, the bottom line is that if you or a loved one will likely need Medicaid assistance for long-term care, obtaining legal advice (in your home state) for your specific situation is highly recommended. As noted above, the Medicaid eligibility rules are quite complex and vary from state to state.  As such, it is important to be certain that you are not confusing other laws and rules with the applicable Medicaid eligibility rules in your state.

©Copyright 2015 by Constance Burnett Renzi. All rights reserved.

To discuss elder law issues, estate planning (including Wills and/or Trusts), life care planning (powers of attorney), special needs planning, probate and/or guardianship matters with one of our attorneys, please call the Elder Law Center at 630-844-0065 or contact us via email. The Elder Law Center, P.C. is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.

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