The Ins and Outs of Guardianship and Conservatorship

The Ins and Outs of Guardianship and Conservatorship

Every adult is assumed to be capable of making his or her own decisions unless a court determines otherwise. If an adult becomes incapable of making responsible decisions, the court will appoint a substitute decision maker, usually called a “guardian,” but called a “conservator” or another term in some states. Guardianship is a legal relationship between a competent adult (the “guardian”) and a person who because of incapacity is no longer able to take care of his or her own affairs (the “ward”). The guardian can be authorized to make legal, financial, and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a “conservator.” Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision making power over only those areas in which the incapacitated person is unable to make responsible decisions (a so-called “limited guardianship”). In other words, the guardian may exercise only those rights that have been removed from the ward and delegated to the guardian. Incapacity The standard under which a person is deemed to require a guardian differs from state to state. In some states the standards are different, depending on whether a complete guardianship or a conservatorship over finances only is being sought. Generally, a person is judged to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions. A person cannot be declared incompetent simply because he or she makes irresponsible or foolish decisions, but only if the person is shown to lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent. Process In most states, anyone interested in the proposed ward’s well-being can request a guardianship. An attorney is usually retained to file a petition for a hearing in the probate court in the proposed ward’s county of residence. Protections for the proposed ward vary greatly from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward’s presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint an attorney if the allegedly incapacitated person cannot afford a lawyer. At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If the court determines that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian. A guardian can be any competent adult — the ward’s spouse, another family member, a friend, a neighbor, or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian. The guardian need not be a person at all — it...

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Medicare Open Enrollment Starts October 15: Is It Time to Change Plans?

Medicare Open Enrollment Starts October 15: Is It Time to Change Plans?

Medicare’s Open Enrollment Period, during which you can freely enroll in or switch plans, runs from October 15 to December 7. Now is the time to start shopping around to see whether your current choices are still the best ones for you.   During this period you may enroll in a Medicare Part D (prescription drug) plan or, if you currently have a plan, you may change plans. In addition, during the seven-week period you can return to traditional Medicare (Parts A and B) from a Medicare Advantage (Part C, managed care) plan, enroll in a Medicare Advantage plan, or change Advantage plans.  Beneficiaries can go to www.medicare.gov or call 1-800-MEDICARE (1-800-633-4227) to make changes in their Medicare prescription drug and health plan coverage. According to the New York Times, few Medicare beneficiaries take advantage of Open Enrollment, but of those who do, nearly half cut their premiums by at least 5 percent. Even beneficiaries who have been satisfied with their plans in 2020 should review their choices for 2021, as both premiums and plan coverage can fluctuate from year to year. Are the doctors you use still part of your Medicare Advantage plan’s provider network? Have any of the prescriptions you take been dropped from your prescription plan’s list of covered drugs (the “formulary”)? Could you save money with the same coverage by switching to a different plan? For answers to questions like these, carefully look over the plan’s “Annual Notice of Change” letter to you. Prescription drug plans can change their premiums, deductibles, the list of drugs they cover, and their plan rules for covered drugs, exceptions, and appeals. Medicare Advantage plans can change their benefit packages, as well as their provider networks.   Remember that fraud perpetrators will inevitably use the Open Enrollment Period to try to gain access to individuals’ personal financial information. Medicare beneficiaries should never give their personal information out to anyone making unsolicited phone calls selling Medicare-related products or services or showing up on their doorstep uninvited. If you think you’ve been a victim of fraud or identity theft, contact Medicare.  Here are more resources for navigating the Open Enrollment Period: Medicare Plan Finder, which helps you find a plan to match your needs: www.medicare.gov/find-a-planMedicare coverage options: https://www.medicare.gov/medicarecoverageoptions/The 2020 Medicare & You handbook, which all Medicare beneficiaries should have received. The handbook can also be downloaded online at:  medicare.gov/forms-help-resources/medicare-you-handbook/download-medicare-you-in-different-formatsThe Medicare Rights Center: www.medicareinteractive.orgYour State Health Insurance Assistance Program, which offers independent counseling:...

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Nursing Home Residents Face Even Greater Barriers to Voting Amid Coronavirus Pandemic

Nursing Home Residents Face Even Greater Barriers to Voting Amid Coronavirus Pandemic

The coronavirus pandemic has forced nursing homes to place a number of restrictions on their residents. These constraints are having the unintended consequence of making it more difficult for nursing home residents to vote. Hundreds of thousands of nursing home and assisted living community residents could be disenfranchised. Older Americans are some of the most reliable voters, but nursing home residents face challenges to voting even in normal times, and they are encountering even greater barriers this election season. In response to the coronavirus pandemic, nursing homes have locked down, prohibiting family and friends from visiting residents and residents from leaving the facilities. This means residents may not be able to leave to vote and also will not be able to have help from family members or organizations in obtaining and filling out mail-in ballots.  In past years, nursing homes and assisted living facilities often acted as polling places, but many of those are being moved due to the pandemic. In addition, nonpartisan organizations have historically been able to enter nursing homes to assist residents with their ballots, but it is unclear whether this will be allowed this year. North Carolina and Louisiana specifically prohibit nursing home staff from assisting residents with their ballots, but even in states that don’t explicitly prohibit it, overworked staff may not have the time to help residents.  While federal law requires nursing homes to protect their residents’ rights, including the right to vote, it is “a really open question to what extent people in long-term care institutions are going to be able to participate in our election in November,” says Nina Kohn, a law professor at Syracuse University who has studied facility residents’ voting-rights issues. Kohn warns that “we should be clear that there is tremendous reason to be concerned that nursing home residents will be . . . systematically disenfranchised in this election,”  For more information about this issue, click here, here, and...

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Medicare Beneficiaries May Be Eligible for an Extra 100 days of Skilled Nursing Coverage Due to Pandemic

Medicare Beneficiaries May Be Eligible for an Extra 100 days of Skilled Nursing Coverage Due to Pandemic

The COVID-19 pandemic has been particularly devastating for nursing homes and their residents.  Aside from the tragically disproportionate loss of life, care for surviving residents has been delayed or interrupted due to infection, facility lockdowns or other health system disruptions.  In such cases, Medicare beneficiaries who qualified for skilled nursing facility (SNF) coverage may be eligible for an additional 100 days of coverage. Whether all qualified beneficiaries will actually get the extended coverage is another question. Medicare does not pay for long-term care, just for “medical” care from a doctor or other health care professional or in a hospital. But there’s a partial exception to this rule. Medicare will pay for up to 100 days of care per “spell of illness” in an SNF as long as the following two requirements are met: 1. Your move to an SNF followed a hospitalization of at least three days; and 2. You need and will be receiving skilled care. After the 100 days of coverage ends, a new spell of illness can begin if the patient has not received skilled care, either in an SNF or a hospital, for a period of 60 consecutive days. The patient can remain in the SNF and still qualify as long as he or she does not receive a skilled level of care, but only custodial care, during that 60 days. Following the declaration of a public health emergency this spring, the federal Centers for Medicare and Medicaid Services (CMS) issued a letter granting a waiver to allow Medicare beneficiaries coverage for an additional 100 days in an SNF, without satisfying the new spell of illness requirement, in certain COVID-19 related circumstances. The letter stated that the policy will apply only to skilled-care beneficiaries whose process of care was interrupted by the public health emergency. (The letter also waived the three-days-in-a-hospital rule in certain cases.) Six months after that letter, however, there is still confusion about which COVID-19 related circumstances qualify for the waiver. Importantly, according to the Center for Medicare Advocacy, CMS recently confirmed that beneficiaries do not necessarily have to have a COVID-19 diagnosis to qualify for the additional 100 days of coverage. Rather, as described by Skilled Nursing News, “[t]he question is whether the emergency situation interrupted the patient’s path to 60 consecutive days of non-skilled, custodial care.” In an August 26, 2020, memorandum, CMS attempted to clarify how it would determine whether a disruption in care was related to the public health emergency: “This determination basically involves comparing the course of treatment that the beneficiary has actually received to what would have been furnished absent the emergency. Unless the two are exactly the same, the provider would determine that the treatment has been affected by – and, therefore, is related to – the emergency.”  However, in some cases, nursing homes do not understand how the waiver applies or are not inclined to help patients with a waiver application. The Center for Medicare Advocacy offers a detailed case example of an individual who appears to meet the criteria for additional Medicare coverage but who has encountered multiple barriers in getting it.    In addition to confusion over who qualifies for the extended coverage, the Center for Medicare Advocacy has found that the “waiver that extends SNF benefits by up to 100 days does not appear to afford beneficiaries the same rights as the first 100...

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How to Fix a Required Minimum Distribution Mistake

How to Fix a Required Minimum Distribution Mistake

The rules around required minimum distributions from retirement accounts are confusing, and it’s easy to slip up. Fortunately, if you do make a mistake, there are steps you can take to fix the error and possibly avoid a stiff penalty.   If you have a tax-deferred retirement plan such as a traditional IRA or 401(k), you are required to begin taking distributions once you reach a certain age, with the withdrawn money taxed at your then-current tax rate. If you were age 70 1/2 before the end of 2019, you had to begin taking required minimum distributions (RMDs) in April of the year after you turned 70. But if you were not not yet 70 1/2 by the end of 2019, you can wait to take RMDs until age 72. If you miss a withdrawal or take less than you were required to, you must pay a 50 percent excise tax on the amount that should have been distributed but was not. It can be easy to miss a distribution or not withdraw the correct amount. If you make a mistake, the first step is to quickly correct the mistake and take the correct distribution. If you missed more than one distribution – either from multiple years or because you withdrew from several different accounts in the same year — it is better to take each distribution separately and for exactly the amount of the shortfall.  The next step is to file IRS form 5329. If you have more than one missed distribution, you can include them on one form as long as they all occurred in the same year. If you missed distributions in multiple years, you need to file a separate form for each year. And married couples who both miss a distribution need to each file their own forms. The form can be tricky, so follow the instructions closely to make sure you correctly fill it out.  In addition to completing form 5329, you should submit a letter, explaining why you missed the distribution and informing the IRS that you have now made the correct distributions. There is no clear definition of what the IRS will consider a reasonable explanation for missing a distribution. If the IRS does not waive the penalty, it will send you a notice. For more detailed information on how to correct an RMD mistake, click here. For more information about taking money out in retirement, click...

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