Elder Law Update
North Carolina Edition |
Vol 2 Issue Eight
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February 2009
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We're Happy!
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Bob Mason has been selected for inclusion in 2009 North Carolina Super Lawyers!(See below for the official Super Lawyers info) Robert A. Mason
Seriously Outstanding
only 5% selected each year
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PLEASE VISIT MASON LAW
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I WANT TO KNOW
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| If you have an idea or comment that will help me make this a better newsletter please send it to me. Just click! |
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Greetings!
 Happy Valentines! Can you feel the "love" in the air? How about in Washington? As this issue "goes to press" the Senate is (hopefully) paring down "The Bill", taking out the pure pork and putting in more "Stimulus". What will be interesting, from our narrow perspective, is what is in there for states with squeezed budgets.
Much of the payments for states will go to the Medicaid budgets. Lest one be too quick to condemn spending on "welfare" be sure to keep in mind that a sizeable share of hospital, nursing home and other health care provider budgets are Medicaid-driven. Hospitals, nursing homes, and other health care providers employ people who, hopefully, will not be laid off and will be free to 'stimulate' the economy by paying for everyday needs.
I have mixed feelings about our new president. But I also believe in taking an objective look at events and taking with gratitude the things that are . . . well . . . gratifying. One such instance is President Obama's pre-inaugural interview with ABC News in which he said he was committed to scrapping Medicare Advantage Plans, correctly noting that the program was costing taxpayers 113% (I've seen higher from the Department of Health and Human Services) per beneficiary compared to traditional Medicare. Those who have followed my rants here and elsewhere know that I believe Medicare Advantage Plans rarely offer a better alternative to the traditional Medicare program and, in fact, hurt many people.
Elder Financial Abuse
With the economy in the tank, crime may be on the uptick. I have always been concerned about crimes against older victims, but I am very concerned that this could become a bigger problem. The topic has been on my mind a great deal lately because of a couple of cases I'm involved with, and in particular one in Savannah that I have been working on with the Chatham County DA's Office. Thus, my column this month: Spotting Financial Abuse.
Speaking of government . . . the Chatham County (Georgia) DA has a position dedicated exclusively to prosecuting crimes against seniors. Meg Heap in the DA's office has been passionate about prosecuting these crimes, and I've been extremely impressed. Meg has just been promoted, so I hope they keep up the good work.
Further Below . . .
Dr. Shevlin's column reminds me of the old Erma Bombeck crack: "I don't know when I cried hardest. When my son moved out, or when my son moved back in." Caregiving grandparents are getting common. But who is giving care to the caregiving grandparent? Dr. Shevlin weighs in.
Warren Coble gives a very thorough run down on how your Social Security benefit is calculated. If you're worried about a layoff, read his column.
Also below, former Vice President Walter Mondale's staffer Penny Louis has some thoughts on moving ahead.
The Salute
Yesterday I went to the swearing in ceremony of my friend Susan Hicks as Clerk of the Superior Court in Moore County (that's Pinehurst to the Georgia golfers!!), North Carolina. At the ceremony Susan Hicks asked her old friend John Mims to lead the Pledge of Allegiance. Later, when Tony McMillan sang God Bless America and America The Beautiful John Mims spontaneously stood, squared his old shoulders and saluted the flag. For a moment he was no longer "just" John Mims, but Master Sergeant John Mims, US Army . . . and a survivor of the Bataan Death march. I'm glad I thought to snap this photo.  There was something very poignant about a man who had gone through so much for this country, a world away and 60+ years ago, being with us at a swearing in ceremony at a nice, clean 21st century courthouse in the middle of North Carolina!
You made my day, Sgt. Mims!
Bob Mason
Certified Elder Law Attorney
Certified by the
National Elder Law Foundation, recognized by the American Bar Association as
the certifying entity for specialization in Elder Law.
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ELDER ABU$E - FINANCIAL
EXPLOITATION
Bob Mason
Elder abuse comes in
many forms. Physical, emotional or sexual abuse immediately pop in to
mind. So do neglect or abandonment. I've seen a lot of those varieties in
my practice, and they're all too common and sad. They're also illegal.
 So is financial abuse
- called financial exploitation under state law. It seems I go through clusters
of issues at Mason Law - I refer to each as my "Issue du Jour"
because they come in clusters and then seem to disappear. For example, I may
go through a period of back-to-back guardianships - and then no more for a year
or more. Lately, and sadly, it's been financial exploitation. Not surprising given the economy.
Two paid caregivers,
three adult children, one angry spouse, and a couple of grubby salesmen. After
dealing with one of the "caregivers" last week I bumped my intended
"lead story" for this issue of Elder Law Update and opted to
go with this.
Surprise: Elder
abuse occurs more in private homes than in nursing homes, and it is usually
subtle. Exploitation can pass unnoticed for a long time and doesn't have any
overt signs like physical abuse.
Warning Signs
The signs can be different. From my lawyer's
perspective my antennae start twitching if someone is running interference
between a client and me. Perhaps Gladys seems nervous
when I call (My usual: "Gladys, is Edith there with you?"). Many of my
clients know I often ask the person who brought my client to the appointment to
be excused . . . there are all sorts of interesting things to read in the
lobby. If the friendly driver seems annoyed, I become suspicious.
Another sure "suspicion raiser" for
me: A client appears wanting to make changes in a will that seem a bit
unusual or to transfer assets to a new "friend".
For others, perhaps with a better vantage
point than mine, the signs may be more obvious. Look for:
- Sudden
changes in behavior - of either the possible victim or the suspected
exploiter.
- The
victim tells you someone is taking advantage of him or her. This happened
to me recently. The therapist called and asked me to talk to the patient
in her office.
- Perhaps
Mom has developed a close relationship with someone new in her life.
For example, a sales person calls to "say hello" everyday.
Or, an unusual person drops by every day to give the victim a ride to the
bank (my hat is off to a certain banker I know who became very suspicious
and brought her concerns to management).
- A
sudden infatuation - perhaps a female caregiver has suggested a romantic
relationship with Dad.
- Perhaps
a daughter who hasn't been seen in years appears without invitation and
shows a strong interest in the victim's money or possessions.
- Mom's
home environment changes drastically; favorite possessions start
disappearing; Mom is short on food, medicine or heat although she has
sufficient funds to pay for them; her house looks neglected although she
has money for repairs.
- Alternatively,
the victim is getting more home services than are necessary, or someone
convinces her to make unnecessary, costly home repairs.
Why?
Greed is the hands down winner. An elderly
person can have assets, be vulnerable, lonely, insecure. . . and very easy to
isolate. And, of course, what goes on in the home is tough to spot.
More subtle, however, and perhaps more
troubling, is the caregiver with a sense of entitlement (and an inflated sense
of their own worth as a caregiver). Also, I often see long nurtured resentment
and anger driving the exploitation (after all, exploitation can be "great
revenge").
What Can Be Done?
Abuse allegations (of
any kind) can be touchy - especially in a family setting. However, if abuse is
suspected, it should be reported. North
Carolina has elder abuse laws (serious ones!) and law
enforcement, medical providers and family services personnel are becoming much
more educated about the subject of elder exploitation. Another route might be
to alert a professional, perhaps an accountant or an attorney, who knows the
victim. As part of my elder law practice, if I suspect something amiss with an
existing client, I will do something (it will help me sleep better at
night).
Elders are
understandably reluctant to report abuse or ask for help. So if you suspect
abuse of any kind, a report should be made. Especially in the case of financial
exploitation, it can be hard for an outsider to know that it was happening;
family members, neighbors, friends, clergy need to be on their toes.
Communication is key, both with the elder and with other family members.
Ask! If you don't like
the answers you are getting and continue to "feel funny" look for
help. If you are not sure what to do, call me and I will point you to the best
resources.
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Caregiving Grandparents: A Doctor Worries
Patricia Shevlin, MD
Care giving comes in many forms. For most
of us, our first care giving role is raising our children. As the needs of the
children change with age, the role of the caregiver changes. Most of us
recognize how difficult a job this is, especially with other responsibilities.
It could be harder.
Senior adults are frequently caregivers
as well. Many times they are caring for  grandchildren. For some, it involves
driving the children to and from school. For others it involves full time care
for the grandchildren. The senior may be
parent, babysitter, chauffeur, cook or any combination. I know seniors who retired specifically to
take care of their grandkids and they are thrilled to do it. For them, the
grandkids are their reason to get up in the morning. They feel younger when
they are with them.
Not everyone's interaction with their
extended family is this rosy. Many of my patients are caring for grandchildren
or great-grandchildren due to circumstance, not by choice. While most of them
tell me they are doing ok, I know there are times when they struggle. They are
living on someone else's timetable for meals, appointments, vacations. Meeting
a friend for lunch involves juggling schedules. If they get sick, which happens
a little more often because they are exposed to the illnesses the grandchildren
have, there is generally no backup plan for childcare. They are expected to
continue as usual.
I have many examples in my practice. Mrs.
S is a 73 year old patient with great grandchildren who live with her five days
a week. Her daughter lives with her full time due to a disability. Mr. S is
beginning to show signs of Alzheimer's. She came in for a blood pressure check
recently and said she thought her blood pressure elevation was due to stress.
When she explained her situation to me, I suggested she speak with her family
about making other arrangements. She told me she had always taken care of the
children in her family and her family depended on her. "They can't afford
childcare" she said. When I explained to her that her husband's needs were going
to increase over time, she told me she would "manage".
For her sake, I would
like to explain to her family why this arrangement needs to change, but I am
bound by patient confidentiality. I'm
hoping Mrs. S will be able to say something or someone else in her family will
notice the increasing demands she is under and speak up.
There are options for families like Mrs.
S's. Someone else in the family could
provide childcare. They might be able to pool their resources as a family to
help pay for childcare. The family could help to provide care for the disabled
daughter. Senior Adult Services could be contacted as well as state agencies to
see if the family is entitled to any services.
I'm sure there are more.
As members of families we all have a
responsibility to look out for one another. We need to be able to offer
suggestions and encourage change when it needs to occur. If you are the
overextended caregiver, don't be afraid to ask for help. Teach your family to plan ahead and to take
responsibility. It's a priceless legacy to leave.
Patricia Shevlin, MD, is a principal in Asheboro Family Physicians with offices in
Asheboro, North Carolina.
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Can A Drop In Earnings Affect Social Security?
-Warren Coble
 Tough economic times drive many layoffs and early retirements. Many of these
retirees are over age 55. One question I keep hearing is related to Social
Security Benefits, such as, "I am 55 years old and recently lost my job. If I do not work by the time I am of age to
collect SS benefits, will my benefit amount be reduced based on not working?
Or, if I do work and my salary is much less than my previous pay rate, will my
benefits be lower?"
What
should folks over age 55 know regarding this type of situation? While the
Social Security website (www.ssa.gov) has a
lot of good information, it is sometimes confusing if you do not understand the
background. A good starting point is understanding
"how"
benefits are computed. From the SSA
home-page, on the left side, select "Forms and Publications." Under Publications, select English. Click or scroll down to "Retirement
Publications", then select the year appropriate "Your
Retirement Benefit: How It Is Figured". This publication goes into great detail and
is most helpful in understanding benefit computations. An on-line Retirement Estimator is also
available on the left side of the SSA home page.
Benefit
rates under Social Security Retirement are based on an individual's lifetime
earnings. The computation formula, known
as "indexing" is designed to take into account "average lifetime earnings",
thus ensuring that temporary periods of unemployment, severance, and job loss,
as well as child-rearing years do not adversely affect wage earners' Social
Security benefits.
Actual
earnings are adjusted or "indexed" to account for changes in the average wages
since the year the earnings were actually received. Another way to help understand this concept
is to compare the actual dollars earned, say 30 years ago, to the inflated
value of that dollar today. The benefit
computation is actually based on the inflated or "indexed" dollar value. Earnings for years age 60 and later are not
indexed. Under this formula, earnings
for years after age 60 could actually be more than earnings in a previous year,
but the indexing formula causes the previous earnings to be counted as "higher."
After the
actual earnings are "indexed", Social Security calculates the average indexed monthly earnings for
the years you earned the most money (based on the "indexing" method). For retirement benefits, a period of 35 years
is used. If an individual has less than
35 years of actual earnings, zero earnings are averaged in to the computation,
thus lowering the overall average earnings, resulting in lower benefits.
From the
average indexed monthly earnings, a 3 step formula is then applied at 90% of a
certain amount (bend-points which are determined each year), 32% of the second
bend-point, and 15% of the third bend-point.
These three amounts are added together to determine an individual's full
monthly retirement rate, known as a Primary Insurance Amount, or PIA. Multiply the PIA by 75% to determine the
monthly retirement benefit at age 62.
An
example: An individual started work at
age 18 and works regularly until age 58 when he lost his job. Salary for this individual had gradually
increased each year to $50,000. Based on
the 35 year indexed formula, SSA determined his full age 66 benefit to be
$1650.00. The lowest indexed year of the
35 years used in the computation was $43,000.
At age 60, the individual returns to work at a salary of $35,000. Since the worker already had 35 years paid in
at a relatively high rate (considering the indexed earnings), the $35,000
earned from age 60 continuing would not affect the benefit rate and the
individual would still receive the $1650.00 at age 66.
Another
example: A woman started work at age 22
and worked regularly to age 32, then stayed home 8 years to raise a child. She returned to work at age 40 and worked
until age 55 earning a salary of $60,000.
She was then laid off and remained unemployed for 3 years. At age 58, she returned to work, but only
earning $30,000 per year and worked until age 66. The loss of her high paying job would
affect her benefit because she had a substantially lower income over a long
period of time from age 57 to age 66 (eight years), and also had an extended
period (eight years during child-rearing and 3 years during unemployment) in
which she had zero earnings. The period
of actual work was only 33 years, resulting in 2 zero years also being averaged
in the computation.
One of
the keys to protecting yourself in these uncertain economic times is
understanding "how" things work. Check
your Personal Earnings Statement from Social Security each year to be sure all
your earnings are properly credited.
Also, using the publication cited above, or the planner tools on the SSA
Website, you can project how changes in earnings levels will affect your future
benefit.
Social Security expert Warren Coble welcomes your
questions regarding Medicare, Social Security and
Senior Life in general! Email Warren by clicking
HERE.
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Some Thoughts On The New Year
- Penny Louis, MPA
I eagerly
anticipated the inauguration of our new President. I don't see how things could get much worse,
and I'm cautiously optimistic about the future.
I'm
hoping that there will be increased attention paid to Aging and the
Elderly. Demographics being what they
are, the statistics speak for themselves.
I won't bore you with numbers but, suffice it to say, the number of senior
citizens in our country is increasing exponentially.
The
number of Medicare, Medicaid and Social Security recipients will increase at a
staggering rate. The number of
retirement communities including Independent, Assisted, and Skilled Nursing
Facilities will be woefully inadequate.
Not to mention the quality of those facilities that currently exist.
I
recently read and was alarmed by an article in the Savannah Morning News
regarding nursing homes in the Savannah
area. Based on a new rating system by
the federal agency, Centers for Medicare
and Medicaid Services (CMS), Chatham
County (Georgia) nursing homes received a
dismally low rating overall. Of 14
nursing homes in Chatham
County, 8 got the lowest
possible rating of one star, indicating the facility ranks "much below
average". Another 3 got the second
lowest rating, and not one of the nursing homes received the highest overall
score.
In
addition to this staggeringly poor performance of our skilled nursing
facilities, other aspects of Elder health care resources are seriously
lacking. We have a dearth of geriatric
care doctors, nurses, health care administrators and geriatric care
managers. Our public policies have not
encouraged the necessary training and recruitment of Eldercare specialists that
will be needed to serve our aging population.
I'm
hoping that the situation will be addressed and will improve over the next four
years. Those of us "of a certain age"
need to become more vocal and active in lobbying our elected officials to
address the issues of aging in a more serious and committed way.
Our
country, in its policies and practices, has not supported the old adage "Honor
Thy Elders". In fact, issues affecting
the elderly and their welfare have been seriously neglected. I'm hoping that
the next administration, and all of our nation's lawmakers and policymakers,
will take the mandate of Eldercare much more seriously.
Penny Louis, MPA is the Managing
Partner of Financial Care for Elders, LLC, Savannah, Georgia, which provides personal business
assistance to clients who have difficulty managing their personal monetary
affairs. She is a member of the American
Association of Daily Money Managers. You may email Penny by clicking HERE.
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The Usual Disclaimer: This newsletter is for general information only. Please do not rely on anything you read in this email as definitive legal advice applicable to you. All situations are different, including yours. Nothing you read in this newsletter is a suitable substitute for professional advice you may receive from your attorney, your accountant, or your tax advisor.
All contents copyrighted 2008 by Mason Law, PC. Contents may be republished with written permission of Mason Law, PC (which permission will usually be given!). |
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