My 89 year old father was in Florida, in a hospital for a few days, before hospice care had been elected.
When some health problems had piled up on him before, he typically still had his wits about him, even if frail, and could communicate. Up until 10 days before his death in late 2010, my dad, a former Marine stationed in the Pacific during WW II, and former plumber and heater contractor for decades, often did a few crossword puzzles a day. And my father wasn’t adverse to taking action when called for, to be in charge of his own life–in fact once at a youthful 83 or so, he left a hospital against medical advice, pulling out the various “iv’s” getting dressed and walking out of a hospital and saying “enough of this, I’m going home” (or more colorful words to that effect that I won’t quote here).
But he wasn’t able to communicate much of anything, in this very last week of his life, in 2010. He had care more or less 24/7 in the hospital just before hospice was chosen, and a wonderfully sweet care attendant was helping to spoon feed him breakfast. One of the items she was feeding him was oatmeal. My dad really hadn’t said anything coherent to us for a few days now, his mumbling or tormented statements seemed a bit like “word salad” to us. We couldn’t really understand him.
But at that moment in a hospital room in Fort Myers Florida, my dad said, as the aide dutifully tried feeding him: “I hate oatmeal.” Many of us kids were in the room, some of my siblings and even in-laws, and many of us had taken up jobs and roles in helping my dad stay at home as long as humanly possible. I was very certain of his medical wishes, his thoughts on treatment, as well as when medical treatments could end, and we all knew that he was less energized at the tail end of his life, having lost his wife of more than 44 years (a second marriage) almost 4 years previous.
I knew a lot about my dad, and his wishes, and his finances, but I didn’t know my dad didn’t like oatmeal.
I knew where he kept investments, knew where he banked, had a rough idea of the value of his home (we kids had been urging him to sell his place and move in with one of us or to an assisted living place or a senior apartment for almost a year–another story for another day–let’s just say he only reluctantly agreed to that idea in concept and only on the last few months of his life), knew what special things he wanted allocated and to whom, knew what some of his favorite meals were, knew which bills he paid regularly, but I had no clue he hated oatmeal. But perhaps I should have.
Given how long many of us are living now, and given the medical interventions that might allow us to live longer, even with some tough medical conditions that might have killed us in earlier eras, it might be smart for all of us to also leave a bit of values/quality of life statement around.
After all, most all the legal things that attorneys suggest we get in place, such as a medical power of attorney, a durable power of attorney for finances, and documents that come into play largely after we die, such as a trust, or especially a will, leave instructions. And by their crafting, such documents might provide a hint of our values or speak to the quality and dignity of our lives, even if we can’t.
But far and away, these documents don’t typically speak much to what is also important. What kind of music or food do we love, what colors please us, what we’d want on a desert island or, were we reduced to a single room in an assisted living facility, what stick of furniture or piece of artwork, or photographs do we treasure, and should be brought along? What visitors would we be happy to see, or conversely, which folks would we rather not have around again? What religious traditions did we grow up with, if any–and what religion do we now embrace or eschew? What clothing do we like to wear if the choice is ours? How do we see ourselves?
If our life “shrinks” some or our independence fades, and perhaps we become more dependent upon others, will those who care for us know these things? And particularly if we no longer (or never) have a spouse around, nor kids, how will this knowledge–how will these small but important things–ever be noted?
At our office, we don’t make a big production of this, but we do encourage, folks to think about this–using a one page (2-sided) document as a cheat sheet. We encourage clients to jot down some notes about these sort of things. We want the folks who might care for you if and when you are disabled, to know just a bit more about you than a legal document or medical chart might convey.
As we tend to live longer these days, there could well be a time when life “shrinks” for us, or communication or control of some aspects of our life fades or is transferred to others. And we think it only right that those others have a clue about you. We want folks to know what you like and hold dear, and we want them to know whether or not you hate oatmeal.
At the law offices of Bradley Vauter & Associates, P.C. we often help address the very human and personal parts of our life, parts that intersect with the law. Should you have any questions and want to set up an appointment for your own new (or updated) estate planning, or if you’d simply like to request the loves/values/life document we give out, feel free to call us at 517 853-8015, or write us at Bradley Vauter & Associates, P.C., 912 Charlevoix Dr. Ste. 120, Grand Ledge, MI 48837.
How do you cover nursing home bills, which can run from $7500 to $9000 a month in Michigan, and average about $8200?
If you are old enough, or younger and on disability, there is a good chance Medicare will help–but Medicare typically only covers 100 days if you require skilled nursing or rehab–and afterwards people need to find other ways to cover the bill. In addition, Medicare seldom if ever pays for what is called custodial nursing care.
Privately paying by using your monthly income and dipping into saving is a typical approach. But even some who think they have salted away enough for retirement realize they might quickly deplete their savings. And while a few folks have good long term care policies in place, most experts say the percentage of folks with such coverage is low–very low–perhaps five per cent or less of us.
This means that many middle class individuals and lower income individuals will turn to Medicaid to help pay a part of the nursing home bill. Medicaid is a program that comes together through Federal and State resources, and it can help pay for a number of medical services, including nursing home services (and nursing home type services arranged so that a person can stay in their own home). Medicaid can also pay for simpler custodial care nursing home services–a level of service that is not covered by Medicare.
Medicaid however is a means tested program, and to qualify, not only must you have medical needs, but you must qualify by way of income and assets. (Medicare really is provided regardless of our resources. But not so Medicaid.) Medicaid rules and regulations change from time to time, and some of the allowable resources or assets one may keep, and still qualify, are adjusted for inflation. As a practical matter, most of the planning to become eligible for Medicaid assistance is done for a married couple, where only one of them needs nursing home care. We work to make sure the community spouse doesn’t go broke while still providing proper care for the spouse who needs nursing home care. That said, even single persons may have some chance to qualify before becoming dead broke.
We help families review their entire situation, and working within the constraints of the program, analyze their assets and income, separate out the exempt assets (assets that won’t “count against” a person becoming eligible for assistance) and then work to speed their eligibility if they might seem to be over assets or if they may have given away assets within the 5 years before application. Another matter we look into is income–while typically a person getting nursing home type Medicaid must turn over their income first, to the nursing home, and Medicaid picks up the deficiency, there might be a chance to give some of the income to the community spouse instead. We also work to preserve their homestead as allowed by the program, if they desire, and we also see if other program regulations might work in their favor.
It can get complicated, as you might guess. particularly when there are even more wrinkles in the program that allow other opportunities to help others in the family.
But our firm, like other elder law attorneys, have developed some tools we can apply depending on the individual situation–and since thousands of dollars might be at stake, it might be worth exploring this with us. Pre-planning and Medicaid crisis planning both crop up.
These following terms may not be familiar to you, but they cover some of the asset or income limitations or easy protections allowed under Medicaid. Remember, these figures do change, but as of July 1, 2017, for Michigan’s Medicaid program, we work with the following numbers:
Monthly Divestment Penalty Divisor: $8,018.00
Individual Resource Allowance: $2,000.00
Minimum Community Spouse Resource Allowance: $24,180.00
Maximum Community Spouse Resource Allowance: $120,900.00
Minimum Monthly Income Allowance (spouse at home): $2,030.00
Maximum Monthly Income Allowance ” $3,023.00
Personal Needs Allowance per Month: $60.00
It can be very tough for caregivers, family members and spouses, when the capacity to communicate, or comprehend communications, starts to evaporate. The problems are sometimes easy to solve–if we are lucky. Usually they are much harder to solve.
One starting point is to see if any adaptive technologies or devices or even practices can be put to use.
A basic look at such things can be found on a federal website, when hearing voice or speech are at issue. Check this out: https://www.nidcd.nih.gov/health/assistive-devices-people-hearing-voice-speech-or-language-disorders
For younger and older folks too, there may be sight issues in which adaptive technologies could help–and a brief look at some such items or ideas can be found here: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1906924/
Finally, should the issue turn more on cognitive factors and communication, related to dementia or Alzheimer’s disease, the Alzheimer’s Association offers some tips for family and friends and caregivers, and those tips can be found here: https://www.alz.org/care/dementia-communication-tips.asp
Feel free to call us if you think there may be legal issues or barriers you face in regards to issues such as this, or in the event you think long term care may be warranted, and are unsure what programs you might use to help in the journey.
Richard Rooney, an attorney here, has heard from various friends over the years, far too many tales of woe about bad landlords–often from tenants who didn’t really protect themselves properly. While some landlords will roll their eyes and recount their own tales of bad tenants, or “professional” tenants who play games, this article by Richard is a good reminder that staying on top of things is the best approach:
“How to Deal with a Slum Lord”
by Richard K. Rooney, J.D.
Having spent a few years dealing with landlord tenant matters as an attorney has been an interesting process. I have represented landlords as well as tenants. Landlords often must face so called “professional tenants” who manipulate the landlord tenant laws in order to acquire free boarding. On the other side of the ledger, are “slum lords” who skirt their obligations and often rip off their tenants by shifting their burdens onto the tenants.
Landlords should and do expect this behavior as part of the overhead cost of being landlords. Not every tenant is going to pay in full or on time and often landlords have to make use of the courts eviction processes. Sadly, most renters dealing with “slum lords” don’t have the financial means to hire a lawyer and go to court. So what can a tenant do to protect himself?
It probably goes without saying that not renting from a slum lord is the best option. But what if financial circumstances don’t allow for that? Here are some quick tips that can help protect you against slum lord rip offs. That said what article by a lawyer would be complete without some disclaimer. These are my common-sense suggestions and are a starting point. They may not be applicable to your situation, in no way constitute legal advice, and are not a substitute for actually consulting a lawyer.
1. Document the Premises
This advice is a good rule of thumb for all tenants whether or not they suspect their landlord is a slum lord. Fill out the itemized checklist and return a copy to the landlord within the first week of occupancy and inform the landlord of any preexisting conditions to the apartment that need to be addressed. Keep a copy of the list for your records. Take photographs of the premises both before you move into the dwelling and last thing before you turn your keys in, so at the beginning and end of the tenancy. By taking these steps you will have evidence of the actual condition of the apartment.
2. Read the Lease
I know. Really. Who reads contracts besides lawyers? As a tenant this is a vital step to understanding what you are responsible for and what the landlord is responsible for. Under Michigan law, there are obligations that a landlord is responsible for by default. Some of these things, can be altered by the nature of the contract while others cannot. For more information on the details, I strongly urge tenants to consult the publications available on the MSU College of Law website.
3. Make Any Communications Regarding Maintenance of the Premises in Writing
This issue can trip people up but it’s important. If you need something fixed maybe just going down to the office or calling the property manager can get things solved. However, if you see no action within a reasonable time follow up in writing and keep a copy of your correspondence. This is especially important if the issue is a major one that would justify withholding of rent.
4. Know About Constructive Evictions
In residential leases, the landlord is responsible for maintaining a habitable environment. This means if certain things aren’t working properly, the landlord cannot legally charge you rent until they are fixed. This is an obligation that landlords cannot change with language in the lease. Some example issues include malfunctioning plumbing, heating, electrical. No heat, no power, and no water – assuming the reason for lack of the utility is within the landlord’s control – means no rent. This means that you can’t withhold rent because you failed to pay your gas bill or because a transformer went down in a storm. But if there are bad pipes or electrical equipment in your rental and thing stop working your landlord is responsible. Other major examples that constitute a constructive eviction would be flooding of the rental, bad roofing causing internal leaking, and failure of any landlord supplied appliances.
If such a condition occurs it is best to inform the landlord immediately and follow up with a written demand for repairs. If the issue isn’t resolved in a reasonably timely manner, you then have the option to send a second written communication indicating the constructive eviction and inform the landlord that you will be escrowing/withholding rent. While it is not necessary to get a “escrow” account, you should at least park the money in a separate account with no other funds. The purpose is that if a district court finds you owe some or part of that rent, you want to be able to show the judge that you acted in good faith and you want to have the money.
5. Know How to Get Your Security Deposit Back
Often, slum lords just assume the security deposit is theirs and find creative ways to keep it. By law landlords are holding that money but it’s the tenant’s money. In fact, if they fail to return that money unjustly, they can be required to pay back double or even triple based on statute and common law causes of action. But, to make the process a smooth one, tenants have certain steps they need to follow.
Those steps are 1. fill out the itemized checklist and return a copy to the landlord the first week of tenancy, 2. provide the landlord with a new address within 4 days of moving out, and 3. mail the landlord written dispute detailing what damages are not the tenant’s responsibility and why within 7 days of receiving the itemized list of damages from the landlord. (For more information on disputing charges against the security deposit see the publication linked above). Know what you are and are not responsible. Security deposits can be held for unpaid rent and damages to the dwelling, not as cleaning fees or for ordinary wear and tear to the apartment.
Often, slum lords will make up bogus charges knowing that most tenants won’t be legally sophisticated and won’t know they aren’t responsible for certain things or they won’t timely provide a sufficiently detailed dispute the itemized list of damages in writing. Slum lords also know that hiring a lawyer to collect even triple the cost of the security deposit is not worth it for tenants to bother.
The following suggestion is somewhat controversial and you should at least talk to a lawyer or legal aid if you think you may end up in this situation. If you are legitimately concerned about a landlord trying to stiff you on the security deposit, you might consider putting your last month’s rent in escrow. Because security deposits can be up to 1.5 times your monthly rent, this doesn’t fully protect you and it opens you up to possible eviction proceedings.
However, if you have good reasons that would convince a judge and you set that money aside as a show of good faith, you can protect yourself. This is the game that “professional tenants” play. Most leases have a 3-5 day grace period. Not until that period has expired can a landlord send what’s known as a notice to quit for non-payment of rent.
A notice to quit for non-payment is a document letting you know that if you do not pay or voluntarily vacate within 7 days, the landlord can then go to court and get a date for an eviction hearing. The hearing will therefore at a minimum not occur until close to halfway into your last month of tenancy. You can further request the hearing be adjourned to acquire a lawyer which already gets you near the end of the month.
While the second hearing cannot typically be adjourned, you have an opportunity to present your reasons to the judge as to why you have that last month’s rent parked in escrow. If you have compelling evidence, the judge might allow the rent to remain in escrow. If not, the landlord must wait another 10 days before they can have you forcibly removed from your dwelling, by which time your lease probably expired anyway. You’ve essentially shifted the burden of who must go through the pain and expense of litigating security deposit issues for the small amount of money involved. Of course, following this track means that you should have all your documentation and follow all the security deposit law requirements.
6. When in Doubt, Talk to a Landlord Tenant Attorney
If you have concerns about provisions of your lease, about getting your security deposit back, about repairs and constructive evictions, or other landlord related concerns, consider talking to an attorney familiar with landlord tenant law. Sometimes, just a strongly worded demand letter from an attorney can get you your money back and those don’t cost nearly what filing a court case would.
I hope these suggestions help anyone faced with a dishonest landlord but remember the best option is to avoid such individuals if possible.
Now that the MiAble accounts have been launched in Michigan, just this week, families have even more options. Setting up a MiABLE account might be just the right thing for some families. But as attractive as such accounts might be, using a special needs trust is still the smarter way to go for other families.
MiABLE or Special Needs Trust?
Some families, for various reasons, will still want to establish a special needs account on their own for a disabled child, but you should also know Michigan’s ABLE program (MiABLE) went live November 1, 2016. You can enroll online https://www.miable.org/ and you can find more general information at
It’s the fifth program nationally and the fourth that Michiganders can enroll in (Ohio, Nebraska, and Tennessee being the others) says attorney Christopher Smith, of Chalgian and Tripp, who has followed these developments closely. However, it is the first program to launch without any budget allocation from the state government he notes. The Michigan Department of Treasury got this up and running without a financial allocation—and the TSA Consulting Group stepped up and seems willing to take the substantial financial risk of administering MiABLE.
A few reminders:
- MiABLE accounts will be charged a fee of $45/year, plus the investment expense associated with the individual’s chosen investment option(s). This is in line with most such accounts available around the country so far.
- There are several investment options open including “conservative” to some “aggressive” fund choices.
- You can alert the world about the account, which may make it easier for other individuals to donate.
- Only one account is allowed, and participants should be mindful to not exceed the fund account limits, or else some of the very benefits meant to be protected could be lost.
Clients should check out the state site. For many with modest needs this may well work, even though any leftover money reverts to the state(s) for any benefits paid, and the type of investment options are limited. Since these options are opening up, a bit of study is called for. Instead of setting up a special needs trust (with our help) for a disabled child, now families can balance the costs of taking that route and compare it to the relative ease (even with some constraints) of using a MiABLE account. Feel free to set up an appointment with us if you need to explore these options.
Bradley Vauter & Associates, P.C.
912 Charlevoix Drive. Ste. 120
Grand Ledge MI