Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston, discuss Right to Counsel

Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.

WELCOME TO THE UNIFORM PROBATE CODE Cont'd


Court Procedures


Right to Counsel

Under the new statute, the court, at its discretion, may appoint an attorney to represent the incapacitated person. The judge may appoint counsel at the request of the incapacitated person or someone else on his or her behalf if the judge believes that the person’s interests are not adequately represented. In the past, the court only appointed an attorney to represent the individual where a proposed guardian was seeking extraordinary medical authority (such as Rogers powers). Although this right to counsel provides additional protections to incapacitated persons, it may also delay the appointment of temporary guardians and add to the legal costs.

This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer

Discussion about Uniform Probate Code relating to Medicaid MassHealth

Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.

Welcome to the Uniform Probate Code cont'd

Court Documents

Medical Certificate

Since July, 2008 (almost a year before the implementation of the UPC,) the probate courts have been using more detailed medical certificates. This is an important change, as the Medical certificate is often the only evidence presented regarding the individual’s impairments. In the past, doctors provided little helpful information with the old certificate form. The new form now requires that the physician state why a limited or full guardianship is appropriate. Among other information, doctors must now provide: clinical diagnosis; detailed description of cognitive and emotional functioning; detailing every day functioning and the level of care required.

It is important to note, that in most instances the doctor will need to complete two medical certificates. A first certificate must be filed in court along with the petition to start the legal proceeding. In addition, because the certificate has to be dated withing thirty days of the court hearing, and because its next to impossible to get into court within 30 days of filing the court documents, a second certificate will be necessary. ( The doctor will need to see the patient again and complete the form right before the court hearing.)

Finally, the certificate now assumes that the individual should attend the hearing and if they can’t the doctor has to explain why. Although the new medical certificate form will enable judges to better craft a limited appointment that specifically suits the individuals needs, this comes at a cost, literally and figuratively. Physicians have always been reluctant to spend much time with these forms. Now many physicians are charging large fees to complete medical certificates (and as described below often two certificates are required) and this places an additional burden on families.

Petitions

Under the new law, in many proceedings two petitions need to be filed. There is a separate petition seeking appointment of guardian to make medical decisions and another petition seeking appointment of a conservator of the property.

Now the patient and any interested person may now petition for guardianship. Previously, the patient was not allowed to petition for their own guardianship.

The new petitions for guardianship and conservatorship require those seeking appointment to provide additional information to the court. You must now make the court aware whether there is a representative payee, health care proxy or durable power of attorney in place (attaching copies of the documents if they exist). Also the court wants to know who has been taking care of the individual for the last sixty days.

Lastly, the new petitions include a request for the authority to admit to a nursing home. This is an important new requirement for guardians. However, if a health care proxy is in place they still have authority to admit to a nursing home.

This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer

Incompetent/Incapacitated/Protected Persons

Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.

Terminology Continued

Incompetent/Incapacitated/Protected Person

Under the old statute, the court appointed a guardian or conservator if it found that the individual was “incompetent”. Now the court focuses on functional limitations instead. Specifically, the court looks to the person’s ability to process information and how that relates to their ability to make personal or financial decisions. A Guardian is appointed for an incapacitated person and a conservator is appointed for a protected person.
An Incapacitated person is a an individual who has as “clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for health, safety, self care, even with appropriate technological assistance.”

The term “ward” used to be used for anyone who had a guardian or conservator. Now ward is limited to a minor who has a guardian appointed.

The elimination of the term incompetent, hopefully will remove some of the stigma from this process.

This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.

Presentation on Uniform Probate Code Terminology

The Uniform Probate Code

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Cohen & Oalican simplify Uniform Probate Code in Part 2 of the series.

Terminology

The UPC has revised some of the outdated terminology used under our old guardianship statute. The new definitions provide more meaningful descriptions which are more consistent with the purpose of the statute. Below are some of the more important changes.

Guardians/Conservators

Under the old statute a guardian could be appointed over both the person and the property. Now under the UPC , guardians only have authority over the person and conservators only have authority of the estate. The UPC has eliminated guardians of property. Article V provides separate parallel sections describing the powers and responsibilities of both guardians and conservators.

This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.

Cohen & Oalican,LLP Boston, Andover, Raynham address the Uniform Probate Code

Cohen & Oalican simplify Uniform Probate Code in Part 1 of the series.

Pt. 1
WELCOME TO THE UNIFORM PROBATE CODE
Introduction
Article V of the Uniform Probate Code (the UPC) was put into effect on July 1, 2009. The purpose of the UPC is to try to improve legal proceedings for incapacitated persons. These improvements address outdated terminology, shortfalls in protecting the legal rights of incapacitated persons and lack of monitoring by the courts. The statute embraces the basic idea that there are many degrees of incapacity and that the courts should carefully tailor the appointment of a guardian or conservator to the specific needs of the individual. The UPC instructs the courts to favor limited guardianships whenever possible. Although the law attempts to provide better court oversight for guardians and conservators with a new monitoring system, it remains to be seen whether this will be more true in theory than in practice. Regardless, all of the new changes reflect additional sensitivity and respect for individuals who are unable to manage their personal and financial affairs.

This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer.

Medicaid MassHealth Legal Q&A Boston, Andover, Raynham

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Question and Answer, Medicaid and MassHealth, Boston Medicaid Attorney Cohen & Oalican, Boston Medicaid Attorney, Boston MassHealth

Boston Elderlaw Attorneys, Cohen & Oalican, discuss the Deficit Reduction act

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Protecting your Primary Residence with Changes to MassHealth (Medicaid) laws

Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence. This article covers the changes in Medicaid annuities.


The Primary Residence

In the past, Medicaid did not count the value of an applicant’s home in determining eligibility. This meant that an individual did not need to sell his or her home, regardless of value, in order to qualify for Medicaid. Under the new rules, however, a house valued at over $500,000 is now counted in determining Medicaid eligibility. (Massachusetts has the option of increasing this threshold to $750,000.) Under the new rules, a single person whose home is worth more than $500,000 cannot qualify for Medicaid unless he or she agrees to sell the house. However, even under the new rules, a house continues to be non-countable if a spouse, disabled or blind child, or child under the age of 21 lives there.

Conclusion

As you can see, these changes dramatically alter the Medicaid program. Nursing homes will have to work closely with residents and their families to ensure that residents are able to smoothly transition from paying privately to receiving Medical Assistance from MassHealth. As always, our office is available to answer your questions or to provide any assistance you may need.
If you would like to review the full text of the law, go to http://thomas.loc.gov/, and enter "S. 1932" in the “search bill” text box.


This is the final article in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP

Changes to MassHealth (Medicaid) laws...

Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence. This article covers the changes in Medicaid annuities.

Annuities

Congress has also changed the annuity regulations. Medicaid allows a spouse whose assets exceed the Medicaid limit to protect those “excess assets” by purchasing an irrevocable, immediate annuity. The old Medicaid rules allowed the spouse to name anyone he or she wanted to receive the remaining annuity payments if the spouse died during the annuity term. Under the new rules, Medicaid requires that annuities name the Commonwealth of Massachusetts as the beneficiary. Although the revised statute is somewhat ambiguous, it appears that the Commonwealth can only seek reimbursement from the annuity for benefits provided to the community spouse. The new rule does not apply to annuities purchased prior to February 1, 2006. Buying annuities remains an effective strategy to protect assets for the spouse of a nursing home resident; however, the new rules have added a risk to this strategy.

This is third in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP

Boston Medicaid (MassHealth) Attorney: Medicaid Laws change due to Deficit Reduction Act : Transfer of Assets cont'd

Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence.

Transfer of Assets (cont'd)


More significantly, however, the new law also changes the date on which the penalty period begins. Under the old rules, the penalty period started when the transfer was made. The new law shifts the start-date of the penalty period to the date when the person is in a nursing home and his or her funds have run out. The new law will not apply to transfers made prior to February 8, 2006. However, Congress has allowed the states to implement the statute at a later date if they choose to do so, so the effective date in Massachusetts may fall after February 8.
The easiest way to explain the change is by way of an example. Let’s assume Mrs. Smith transfers $20,000 to her grandson on March 15, 2006. On April 15, 2007, Mrs. Smith suffers a stroke and is admitted to a skilled nursing facility. Assume she spends down her assets below $2,000 as of August 2007. Under the old transfer rules, the March 15, 2006, transfer would have made Mrs. Smith ineligible for Medicaid benefits for almost three months, starting March 1, 2006, and ending at the end of May 2006. Thus under the old rules Mrs. Smith would have been eligible in August 2007. Under the new rules, however, the transfer penalty would not start until August 1, 2007 and would end in November. The question then arises: How will Mrs. Smith pay the facility if the transferred funds are gone and she is not eligible for Medicaid?

This is second in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP

Boston Medicaid (MassHealth) Attorney: New Series: Medicaid Laws change due to Deficit Reduction Act

Elder law attorneys Cohen & Oalican of Boston, Andover and Raynham want to alert you that on February 8, 2006, President Bush signed the Deficit Reduction Act of 2005, which significantly changes the federal Medicaid laws. The three most important changes concern: 1) the transfer of assets to qualify for Medicaid; 2) Medicaid annuities; and 3) Medicaid’s treatment of the primary residence.

Transfer of Assets

As you may recall, Medicaid, a.k.a "MassHealth," penalizes applicants who transfer assets by imposing one month of ineligibility for nursing-home benefits for every $6,960 (as of 2005) given away. But by changing two important aspects of the Medicaid rules, Congress has imposed much stricter penalties than ever before.
Under the old rules, Medicaid would review three years (or in the case of trusts five years) of financial statements in order to identify any disqualifying transfers. This is known as the “look-back period.” The new law extends the look-back period to five years for all transfers.

This is first in a series regarding changes the Deficit Reduction Act of 2005 has made in dealing with Medicaid (MassHealth). Thank you for putting your trust in our Elder Law legal practice, Cohen & Oalican, LLP