Posts filed under ‘Elder Law Matters’
a note about email
I welcome email contact from folks who read my blog or visit my website. In fact, I generally invite readers to contact me at the end of each blog post if they would like to speak with me directly.
However, I can’t give legal advice via email. If you have an issue that you would like to discuss, feel free to send me a brief email. We can then schedule a time to talk – by phone, Skype or in person – to discuss your issue and how I may be able to assist. Or, you can access our client extranet by making contact HERE, and we will create an account for you. In the extranet, you can request a legal service or ask a legal question, and I will respond promptly.
Please understand that before I can give legal advice or assist you with a legal matter, we must first form an attorney-client relationship. This cannot be accomplished via email communication, but we can create this relationship via our secure client extranet. Until I can obtain certain information from you, I can’t provide legal advice to you in any format. This is a requirement of the ethics rules that govern the practice of law in Tennessee.
IMPORTANT NOTE: PLEASE do not include detailed information in any email communication to me. Email is NOT a secure method of communication and should not be used to share confidential information with anyone.
The information I offer in this blog is general in nature, and may not apply to your specific situation. So, if you have a legal issue (problem, question, etc.), please contact an attorney for assistance. I’m glad to speak with you, or help you find an attorney in your area.
Many thanks for reading my blog!
Conservatorships in Tennessee: a brief primer
Conservatorship – families often encounter this word for the first time in moments of great emotional stress. A conservatorship describes the legal process required in order to gain legal control over many aspects of another person’s life. Why would this process be necessary?
In my practice, I’ve worked with many families throughout the conservatorship process, both as an attorney for the petitioner (the person who seeks to be appointed a conservator) and as a guardian ad litem (the person who investigates the situation on behalf of the disabled person who is the subject of the action). The reasons have been many and varied, but the focus is always on the individual who simply can’t care for him- or herself, thus prompting a family member or caregiver to take action to assume legal control over the disabled person’s life.
Disability can happen at any time. We commonly think of an elderly person who becomes too ill or frail to manage her own affairs – if she doesn’t have the proper powers of attorney (for both general and health care purposes), then a conservatorship action must be initiated in order to legally manage both her general and medical decisions. However, disability also happens to younger people. A serious accident or illness can leave anyone – even a young and previously healthy person – disabled.
Another common reason families seek conservatorships is to care for a family member born disabled. When a disabled person reaches the age of 18, his parents can no longer exercise legal control over his affairs. Thus, in order to maintain control of medical care, for instance, the parents of a disabled child 18 years or older must establish a conservatorship for their child’s care.
What does this mean in Tennessee? If you’re caring for a disabled individual and this person hasn’t executed a durable power of attorney for health care, then you must establish a conservatorship in order to have access to the disabled person’s medical records or make any health care decisions for the person. Additionally, a person born with certain disabilities may not have the capacity to execute a power of attorney, thus making a conservatorship the only option for family members or caregivers.
The conservatorship process in Tennessee is set out in Tennessee Code Title 34 : Guardianship. (This section also address guardianships, which apply to persons under the age of 18.) The process requires very specific information be presented to the Court, before an individual’s legal rights will be removed and placed with another person as the conservator.
In a nutshell, the petitioner (the person who seeks to be appointed conservator) must include the following in a petition for conservatorship:
- the basis for the petition – e.g. why the disabled person is unable to care for him/herself
- a doctor’s sworn statement, based upon a physical examination within 90 days of the filing date of the petition, setting out the disabled person’s specific disability(ies) along with a statement that a conservator is recommended for the disabled person’s care
- a complete listing of the disabled person’s property
- a complete listing of the disabled person’s income
- a complete listing of the disabled person’s living expenses
- a proposed property management plan, explaining how the conservator will manage the disabled person’s property and income in order to meet the living expenses obligation
After the petition is filed, the Court will appoint a guardian ad litem, whose duties are set out in Tennessee Code Section 34-1-107. Generally, the Guardian must interview the disabled person, present him or her with the petition, and investigate the facts set forth in the petition. The Guardian then files a report with the Court, expressing the Guardian’s findings and his or her opinion as to whether the conservator should be appointed.
After the conservator is appointed, this person has a continuing obligation to the Court to file accountings on an annual basis. The accounting reports all income and expenses of the disabled person, and should reflect the property management plan approved by the Court during the conservatorship proceeding.
A couple of things to keep in mind:
- In a conservatorship, the Court maintains oversight of all financial matters, for as long as the conservatorship is in place. The purpose is to insure that the disabled person’s income is being used properly – for the disabled person – and is not be used in inappropriate manners.
- In a conservatorship, the Court maintains control over many of the Conservator’s actions. For example, the sale of certain types of property belonging to the disabled person must first be approved by the Court.
In most instances that require a conservatorship, the action could have been avoided if proper planning been done at the right time. Why does this matter?
On a practical level, if your mother becomes disabled without having powers of attorney in place and you’re appointed conservator through a legal action, you now have to account to the Court for every dime you spend on her behalf. For most families I work with, this is not the ideal outcome, as it imposes restrictions on the actions of the person serving as conservator and inserts the Court into a situation that otherwise would not require such keen oversight.
Of course, not every instance can be addressed through the use of powers of attorney – but such a plan often is a simple and inexpensive way to avoid the expense and emotional toll that a conservatorship action can exact.
If you have any questions about conservatorships in Tennessee, including how to put a plan in place that renders a conservatorship action unnecessary, I’m glad to talk with you. Please contact me – 615.656.4044 or cnm@csquaredlaw.com – to schedule a no-cost, no-obligation consultation.
Personal Services Contract: a legitimate way to transfer assets for Medicaid qualification purposes
Families looking for ways to transfer assets from an elderly family member’s estate in a legitimate manner that won’t cause disqualification from receipt of Medicaid benefits should consider a ‘personal services contract’ for such purposes.
This method of asset transfer may or may not be a good fit, depending on a family’s circumstances. Generally, if the elderly family member is in need of various types of assistance (discussed below in more detail), then he or she can pay a family member to provide this assistance by way of a contract created for this purpose.
If drafted correctly, the payments made pursuant to the contract should be considered ‘qualified’ asset transfers (expenditures) under current Medicaid guidelines in Tennessee and will not trigger a disqualification of receipt of Medicaid benefits at the time of application.
At a minimum, such a contract should be in writing, and should specify the following: (1) services to be performed stated in reasonable detail; (2) value of the services, as determined in the geographical marketplace where such services are to be peformed; (3) frequency of payment – a lump sum, or periodic (weekly, monthly, quarterly).
Services to be performed. The contract should identify the specific services, including frequency, that the family member is to perform. Generally, these services fall in the following categories:
• general bookkeeping and bill-paying, which could include preparation of tax returns;
• personal assistance, including shopping for necessities, helping with household chores, errand-running, and the like;
• caregiving services, which are generally viewed as encompassing those services similar to what is provided in an assisted living facility – eating, toileting, bathing, dressing, in addition to those activities described above as ‘personal assistance.’
It’s important to note that the agreement should not specify that the caregiver will provide any kind of medical care, as such reference could have the ultimate affect of disqualifying the elderly person from receipt of Medicaid benefits in that a third party (the caregiver) could be viewed as being legally responsible for the elderly person’s medical care.
Value of services. In determining value, it’s imperative to consult care providers in the local geographical area who offer similar services, in determining the compensation to be paid to the family member. The pay must fall within a ‘fair market value’ that should be documented at the time the agreement is entered into, whether the payment is a lump sum or paid periodically.
Timing of payment. The contract could provide for a single, lump sum payment to the caregiver, made at the time the contract is entered into by the parties. If a lump sum payment is chosen, then it must be actuarially sound – e.g. the life expectancy of the elderly person must be calculated by consulting the federal government’s life expectancy tables.
If a periodic payment schedule is used, then payment is based upon the value of the services provided within the specified time frame for payment. Further, if the payment is calculated based upon actual time spent (e.g. an ‘hourly rate’), then the person providing the services must keep accurate time records to support the payments made.
Also note that payments made pursuant to a personal services contract must be only for services performed after the contract is signed. Payments made for past services performed are subject to challenge as disqualified transfers.
Finally, it’s imperative to keep in mind that services provided as part of this kind of agreement must be substantive and that the agreement can be terminated only for cause. A sham agreement will be viewed as such by Medicaid authorities and any payments made there under will be viewed as a ‘disqualifying transfer’ under Medicaid guidelines. Ultimately, the elderly person could be disqualified from receipt of Medicaid benefits until he/she has spent the amount paid under the contract.
For more information about personal service contracts as part of sound Medicaid planning in Tennessee, please contact Caitlin Moon, cnm@csquaredlaw.com or 615.595.4044.
