Planning for Life

What to Do About Hospital Observation Status Under Medicare

Posted by Harry S. Margolis on May 2, 2021

By Harry S. Margolis


If you are a Medicare patient and need emergency hospital care, there's a risk that you will be treated as an out-patient in the hospital for "observation" rather than being formally admitted as an in patient. While you may notice no difference in terms of your care, this can have a significant effect on your hospital and post-hospitalization Medicare coverage.

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Trust May Be Reformed to Avoid MassHealth Payback

Posted by Harry S. Margolis on April 29, 2021

By Harry S. Margolis


A mistake many non-elder law and special needs practitioners made, especially early on, was to use so-called (d)(4)(A) trust forms for third-party special needs trusts. The problem with doing so is that it unnecessarily subjects any funds remaining upon the beneficiary's death to repayment to Medicaid (MassHealth in Massachusetts) for the cost of services covered.

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Topics: estate recovery, (d)(4)(A) trust

John Oliver Takes on the Long-Term Care Industry

Posted by Harry S. Margolis on April 26, 2021

By Harry S. Margolis

rusty-watson-yIGinlYA6t8-unsplashIn an excellent (if somewhat profane) program, John Oliver takes down the for-profit long-term care industry. He describes understaffing, underpay, and the difference between Medicare and Medicaid reimbursement.

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Topics: nursing homes, assisted living regulations, assisted living, skilled nursing facility

Pandemic Highlights Caregiver Crisis, Biden Bill a Step to a Solution

Posted by Harry S. Margolis on April 20, 2021

By Harry S. Margolis

As we have discussed before, the number of Covid-19 deaths in nursing homes has brought to light the ongoing crisis in how we care for our ailing seniors. In short, the problem is that we've always been trying to do so on the cheap through the Medicaid (MassHealth in Massachusetts) program. As a result, caregivers in nursing homes are underpaid and most facilities are understaffed.

Low Pay Affects Quality of Care

A recent report, which is summarized in The New York Times, describes how the low pay and stress leads to turnover of nursing home staff. That turnover affects care both because it means that most caregivers are inexperienced and they and the nursing home residents don't know one another. This can be especially confusing for those residents who suffer from dementia.

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Topics: nursing homes, Caregivers, home care

Beware the Missing Schedule of Beneficiaries for your Nominee Realty Trust

Posted by Harry S. Margolis on April 14, 2021

By Harry S. Margolis


If you have a nominee realty trust, make sure you also have a copy of the schedule of beneficiaries. We can't tell you how many times we've found these schedules missing, meaning it's not clear who owns the property.

What is a Nominee Realty Trust?

To understand what this is all about, you need to know something about nominee realty trusts. These are devices used almost exclusively in Massachusetts to hold title to real estate through which the trustees act as agents for the beneficial owners whose names are not listed on the deed. They are also not listed in the trust document; instead, they are listed on a separate schedule of beneficiaries which is not recorded at the registry of deeds (which is why they often go missing).

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Topics: nominee realty trust, schedule of beneficiaries

Appeals Court Clarifies Standards for Rogers Decisions

Posted by Harry S. Margolis on April 5, 2021

By Harry S. Margolis


A recent Massachusetts Appeals Court case clarifies the law around the administration of antipsychotic medications to individuals under guardianship pursuant to Rogers determinations. In accordance with the Rogers case, guardians may order the administration of antipsychotic drugs only after a so-called "substituted judgment" determination that the person under guardianship, were she competent, would agree to take the medication.

In other words, the question is not what is in the individual's best interest. Instead, the goal of the proceeding is to preserve the individual's right to self-determination and in effect to make her own health care decisions.

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Topics: guardianship, Rogers decisions

Check Your Retirement Plan Beneficiary Designations!

Posted by Harry S. Margolis on April 1, 2021

By Harry S. Margolis
Yes, I know, checking your retirement plan beneficiaries is tedious, but if you haven't done so recently (let's say, in the last five years), now's the time. This applies to all your retirement plan accounts, whether 401(k)s, 403(b)s, or IRAs. Your circumstances or those of your named beneficiaries may have changed, meaning that you need to adjust who you name as beneficiaries of your plans.
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Topics: Retirement Benefits, life insurance

Which Spouse is the "Spouse" in the Trust?

Posted by Harry S. Margolis on March 23, 2021

By Harry S. Margolis


A recent Texas case, Osche v. Osche, shows the benefit of using names when drafting rather than terms such as "spouse." In 2008, Amanda Hurst Ochse created an irrevocable trust for the benefit of her son, William W. Ochse III, his children, and his "spouse." For almost 30 years, he had been married to Cynthia Cadwallader Ochse. However, they got divorced in 2012 and in 2015, William married Carol Osche.

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Topics: irrevocable trust, rules of construction

Nursing Homes Crisis: Pandemic Deaths and 5-Star Ratings

Posted by Harry S. Margolis on March 18, 2021

By Harry S. Margolis


As described in an article in Next Avenue, nursing homes have evolved over the years from alms houses for the poor to today's skilled nursing facilities. At the same time, they've also evolved from homelike settings to be more like hospitals. At the same time, in recent decades, we've seen the huge growth of the assisted living industry which attempts to be more homelike, often aspirational, with luxurious common areas.

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Topics: nursing homes, assisted living, skilled nursing facility

Some Biden Tax Proposals I Can Support

Posted by Harry S. Margolis on March 9, 2021

By Harry S. Margolis


Last week, I wrote about the reasons I disagree with President Biden's proposal to eliminate the step-up in basis. Here I'll discuss some other tax proposals he has which I can support.

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Topics: income taxes, capital gains taxes, estate taxes

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