People who have followed court cases and regulatory actions and policy developments in ANY area of law, understand there is often a sort of uneven path that is carved out, often case-by-case, until an area of the law is considered “settled.”
And all of us understand that even “settled” areas of the law are subject to change at times, whether because of slightly different facts, new legislation, tweaks in a constitution, and development over the decades in case law and politics, to a lesser degree. (Remember slaveholding was “ok” according to our courts at one time, now, with changes, slaveholding is not “ok.” Pollution and spewing industrial wastes and toxins in the air or land or water, once almost seemed to be a sort of property and business right according to some court decisions, without a lot of enforcement or control over the activities–now many such activities are regulated or prohibited in full or in part.)
In several courts around the country, both federal and state, judicial opinions have supported the notion that discrimination on sexual orientation and gender identity is, in essence, a form of sex discrimination, and so if laws and rules about sex discrimination apply to the situation, so too might discrimination because of one’s orientation and identity. This is good news for many in the LGBT community.
In the vastest oversimplification around, my own, and not other thinkers on the topic, it’s the concept of “you don’t fit in” or “we don’t do that here.” When woman first started working in the trades, or as cops or firemen–there was a lot of pushback, just as there was when women in college wanted to have competitive sports teams and opportunities to play. The law and policy worked their way around the issues–and while it might still be a bit unusual to find a female construction worker on the job–she’s probably gonna find her employment rights protected provided she can do the job . When men started to go to school for nursing and enter the work force as nurses in greater and greater numbers, they too faced pushback–they didn’t “fit in.”
In some ways, just as we might have thought it wasn’t smart or “right” for a woman to do this, or a man to do that, the law has shifted, and the more prominent notion is “can you do the job?” And doing the job usually has little or nothing to do with your race or religion or sex or age (nor frankly for a good number of jobs is your size a factor–Michigan has protections for weight and size–if folks are discriminated on those factors, they might be able to bring a legal complaint about such discrimination too).
And, in what should be good news of sorts for members of the lgbt community–doing the job, or renting an apartment, and so on, should not be hampered merely because you are in the lgbt community. An article from the Detroit Free Press about some of the developments can be found here: https://www.freep.com/story/news/local/michigan/2018/05/21/civil-rights-lgbt-discrimination/630297002/
The arguments about sex discrimination and sexual orientation and gender identity having a common genesis, and arguments that both forms of discrimination should be illegal in most instances, is not a brand new one–I made such an argument as early as 1985 on behalf of an individual substitute teacher fired by the Gobles School system (in Van Buren County) and you can find a synopsis of sort from 1994 and 1995 here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2248257
Mind you, there is still some debate about the issue, not all circuits quite agree, and nods one way or the other by the executive branch of the US can change as well….but in the process (and it IS a process) of puzzling out what is legal or fair and just, changes can and do occur. This last article may give you more info to chew on: https://www.natlawreview.com/article/second-circuit-rules-anti-gay-discrimination-sex-discrimination
Sometimes people joke around with others about getting older or dying, or losing our capacity, and the joking around goes something like this: “I don’t mind dying, it’s the getting there that bothers me,” or “I want to die peacefully in my sleep at 95 like grandpa, and not screaming like the passengers in the car with him just before the accident” and so on and so forth.
Many of us do die suddenly, often peacefully, and with most of our abilities somewhat intact. But if we have a long glidepath towards death, and happen to have some form of dementia, or Alzheimer’s, it is possible we will be unable to communicate very well, if at all.
In these circumstances we might have neighbors or friends or loved ones or a spouse who can speak up on our behalf.
Our care, most argue, is best delivered by those who not only have technical skills in the delivery of care (nursing or otherwise), but who know or understand us.
But what if we have no one around to relay our history, or they are far far away? Or what if no one left really “knows” us? That’s a challenge for caregivers.
As one small step, completing a sort of “values and information” document can help. Such a document isn’t really related to a lot of legal issues, rather it gives a little glimpse into your personality and values.
Armed with such information, caregivers can better help you in the event you are not able to communicate much of anything. And if some respect is given to your thoughts and wishes (even as it becomes harder and harder, or impossible for you to communicate the wishes) many think you will do a bit better until death.
Our firm has a values and information document that is always evolving. Feel free to play with it, or use it, in any manner you wish. It is below. (Also, see the earlier blog post on our page called: I Hate Oatmeal)
If a person is going to be in a nursing home (nh) or needs long term care help for half a year or more, maybe the rest of their lifetime, many will eventually apply for assistance. This is because of the long term care costs involved–on average close to $8100 per month in Michigan.
Medicare typically only covers such costs the first 20 days in full, the next 80 days afterwards with a co-pay, and typically bows out, or stops coverage, after day 100. (If the care level is hospice in nature, Medicare may jump back in with payments for the hospice service costs–but not the room and board portion of hospice.)
Medicare, which most folks 65 or older get, is not really “means tested.” This means that Medicare doesn’t really care about our assets or incomes and doesn’t typically care what our financial situation might be in a coverage analysis.
If it appears that the person is going to need a nursing home for months and months and months, or even years, they might apply for help with such bills via Medicaid, which doesn’t have a 100 day coverage limit. But Medicaid IS ‘means tested” and so a review of exempt versus non exempt assets is made, and sometimes, to qualify, one has to do some planning or spending down of non-exempt assets, or both.
Below are the “numbers” for 2018. Feel free to make an appointment with us if you need to look into Medicaid planning, or need help paying for long term care or preserving the nest egg of the spouse who doesn’t need long term care care.
Equity value of homestead (exempt) $572,000.00
Individual Resource Allowance (yearly) 2,000.00 (0r $3,000 if both spouses in nh)
Monthly Personal Needs Allowance 60.00
Minimum Protected Amount Community Spouse 24,720.00
Maximum ” ” ” ” 123,600.00
Burial Fund/Space Allowance (2 different things) 1,500.00 or more, depending on many factors
Pre-paid Funeral Contracts 12,540 (2017 number subject to adjustments)
Vehicle (one vehicle only) exempt (generally no value limit)
Minimum Monthly Allowance for Community Spouse 2,030.00
Maximum ” ” ” ” ” 3,090.00
There are more figures and numbers that can crop up when a medicaid application is being made–keep in mind DHHS essentially puts the assets into two piles–those assets which are exempt (and don’t count “against” an application, thus also amounts one can readily “protect) and assets which are not exempt. Non exempt assets would likely be used up, spent, on care BEFORE Medicaid could help. But this can really put those left behind at a disadvantage. Sometimes, with prudent planning or review, a couple or individual could shift these numbers a bit, to help preserve important savings or protections for the community spouse. Elder law attorneys help review these issues with the applicant/family. Naturally each situation differs and so what might be prudent or possible for one family, might not work, or may not be needed, for others. But a review is always smart.
DHHS also looks at the income of a Medicaid applicant. Typically, virtually all of the applicant’s income is used to help pay for the nursing home, with Medicaid helping pick up the balance, or shortfall. Thus, if a single person had monthly social security of 1300 dollars, and an 800 dollar pension from one spot and a 125 dollar pension from another spot they would turn over all but 60 dollars a month to the nursing home (this would be their patient pay amount under Medicaid rules), in this instance the single person would pay 2165 dollars every month towards their care–and Medicaid would help with the rest of the monthly bill.
When the nursing home patient (or prospective patient) has a spouse who can stay at home though, the patient pay amount might be adjusted so the community spouse–the one still home–can avoid what the law would call spousal impoverishment. The federal government and states who come together to provide Medicaid, realize that a spouse left behind might suffer if they can’t keep a bare bones budget going.
So in the example above, the nursing home spouse had 2225 of monthly income. What if their (community) spouse had income of 900 a month social security and one pension of 420 a month (as an example) for a total income of 1320 a month? Under the rules, at minimum, the community spouse could keep 2030 from their joint incomes. This means that the nursing home spouse would be able to give the community spouse at least 710 per month (to bring the community spouse up to 2030 in monthly income) and this also means that the “patient pay” amount in our example would change–and would drop to 1455 per month.
Anyway, this stuff can get confusing but as a basic numbers example for 2018, I wanted to get this posted. Most of the numbers above changed with the beginning of 2018, a few of the numbers change in the summer, so check with the Michigan Department of Health and Human Services or call an elder law attorney and make an appointment if you need to explore this more.
As reported in the New York Times the other day, there are some steps one can take if you are single or essentially so, and the quasi- automatic default system of relative care won’t be available. This is good reading. Remember too, a stop with an attorney, a consultation, and perhaps preparation of documents such as a power of attorney or medical power of attorney, or long-term care planning strategies, is smart. https://www.nytimes.com/2018/03/23/business/elder-orphans-care.html
I presented early in January to a chapter of the State Retirees Association of Michigan–Lansing Chapter. (The materials I handed out can be found elsewhere on our site–like here: lhttp://SERAPresentationltcfinal )
One of the folks in attendance faced an issue that crops up more often than you might think. The issue? Who will help me when I need it. We were not talking about nursing home help or help in a hospital.
Rather we were talking “agents.” Those people who might help during a period when we are alive but not really able to help ourselves much.
Most attorneys suggest creation of a durable power of attorney to help with financial issues, contracts, bill paying, banking and property management. When your durable power of attorney document is drawn up, you are the principal. The person you entrust to help out is your agent.
A medical power of attorney is also advisable. In Michigan we have a particular name for these medical power of attorney documents–we also refer to them as a patient advocate form. So you name, effectively, a medical agent/patient advocate and possibly a successor as well.
Most naturally we urge selection of, and people tend to choose, those who know them, and in whom they can put a good deal of trust. That’s smart. Often this is family–but even then, if we are frank, we know some family members are better at such jobs, honors or duties, than others.
Back to the SERA member. She was very close to 90 years old, and had outlived most of those to whom she’d turn, and one other relative was darn close to her age and in worse physical health.
Sometimes other people come to us, and while they still have children only in their 30’s or 40’s, those children may have problems of their own–finding themselves in a messy divorce, or almost broke and near bankrupt, etc. Those folks also have a difficult time thinking of someone to name as an agent.
And more often than in the past, more clients come to us who have long been single, with no spouse nor children.
How do you find an agent under such circumstances? There is no one simple answer, but three routes come to mind:
a) explore your extended family tree—Is there a niece or even great niece or nephew who could help? Have you talked to them, and if so, do they share your values, are they up to the task?
b) go deeper into your friendship network, even make new friends (this isn’t a Dale Carnegie class, but you might be surprised what reaching out might do)—Do you belong to Rotary or a bowling club or hunting group? Would you ever be able to invite someone to discuss such an idea to dinner at your house? I am hearing more of intentional arrangements as well–a sort of adopted friend/family thing–where other single folks, maybe your age or younger, say in effect “Hey, I’ll help you out, if that time should ever come–and if you’re in a position to help me out, should the time come, you can do the same for me.” This often involves selecting a few people, of course, who talk the idea through.
c) consider professional assistance–In Michigan, a patient advocate cannot be paid for their services–talking with a doctor, considering alternative treatments, and so on. If they run into out-of-pocket costs, that can be reimbursed. So patient advocacy is something for which even a professional would make little or nothing. But if you have an agent under a durable power of attorney act on your behalf, and IF you have it in the document, an agent could charge a reasonable fee for doing the running around, making contracts, paying bills, and such other work as an agent might do. And if you have a trust and name a trustee (perhaps a bank, or an attorney or an accountant) they too can charge a reasonable fee to take care of your affairs.
This is not a “one size fits all” decision. Still, it is worth thinking about and worth discussing, before the need hits.
A recent article going a bit deeper, and perhaps with a slightly different direction, popped up in the ABA Bifocal Journal and can be found here: https://www.americanbar.org/groups/law_aging/publications/bifocal/vol–39/issue-3–february-2018-/agingsolo.html
And as always, if you need to chew on this, or related ideas, we are here to help.