Last week I had the pleasure of conducting an ICLE webinar with Carol Johnston, Esq., Secretary to the Advisory Committee on Professional Ethics. Carol informed us of many ethical issues relating to Elder Law. I am giving one example to point out the overriding principle in the ethical area. That is, although you may have a conflict, the conflict may be waived. The seminal issue is should you waive the conflict. For example, suppose there is a child who provides care to a parent for the required two-year period and the home can be transferred to the child without Medicaid planning. Further suppose, that the child is one of several offspring who are beneficiaries under the client's will.
The ethical issue is should you represent the client and the children. Carol pointed out that although the issue may be waived, it might be prudent not to do so. That is, if you represent a disabled child and a transferor, the remaining children might challenge the transfer and you would be vulnerable to an ethics complaint. That is, there is a presumption when a disproportionate distribution is made to one individual, that undue influence was exercised.
When counsel is presented with a conflict, the issue is not whether the conflict can be waived, but whether it should be waived. Such a principle is overriding in the Medicaid area.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 132
Monday, January 24, 2011
Monday, January 17, 2011
The Necessity to Use a Daily Money Manager
On occasion Medicaid attorneys will need the assistance of an expert in handling the paperwork for their clients both on a daily basis and for Medicaid purposes. Attached is a description of Liberty Paperwork Solutions describing their services.
My name is Emily Lutz, and my company is Liberty Paperwork Solutions LLC. We are part of a relatively new and growing professional field known as Daily Money Management. Daily Money Managers help individuals and families with their personal paperwork. This may include bill paying, checkbook balancing, filing, organizing and budgeting, as well as submitting and tracking medical insurance claims.
Older adults as well as busy professionals are likely to engage the services of a Daily Money Manager. DMM services can help older adults maintain independence while providing their adult children with peace of mind, knowing their parents’ needs are being met.
We work closely with our clients’ other network of professionals, including attorneys and accountants, so that all information is shared in a timely and accurate manner. If and when the time comes to apply for Medicaid, we can move the application process along by helping to retrieve statements that satisfy the Medicaid “look back” period. We also monitor the accounts on an ongoing basis to make sure the Medicaid recipient does not exceed the specified resources in order to remain eligible.
Liberty Paperwork Solutions LLC has been helping people take care of their personal business and paperwork tasks for over 4 years. With an extensive background in banking and working with seniors, we have many satisfied clients. We are a member of the American Association of Daily Money Managers, and are fully insured. For further questions, or to schedule a complimentary consultation, I can be reached at Emily@LibertyPaperworkSolutions.com, or 973-462-5733.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 131
My name is Emily Lutz, and my company is Liberty Paperwork Solutions LLC. We are part of a relatively new and growing professional field known as Daily Money Management. Daily Money Managers help individuals and families with their personal paperwork. This may include bill paying, checkbook balancing, filing, organizing and budgeting, as well as submitting and tracking medical insurance claims.
Older adults as well as busy professionals are likely to engage the services of a Daily Money Manager. DMM services can help older adults maintain independence while providing their adult children with peace of mind, knowing their parents’ needs are being met.
We work closely with our clients’ other network of professionals, including attorneys and accountants, so that all information is shared in a timely and accurate manner. If and when the time comes to apply for Medicaid, we can move the application process along by helping to retrieve statements that satisfy the Medicaid “look back” period. We also monitor the accounts on an ongoing basis to make sure the Medicaid recipient does not exceed the specified resources in order to remain eligible.
Liberty Paperwork Solutions LLC has been helping people take care of their personal business and paperwork tasks for over 4 years. With an extensive background in banking and working with seniors, we have many satisfied clients. We are a member of the American Association of Daily Money Managers, and are fully insured. For further questions, or to schedule a complimentary consultation, I can be reached at Emily@LibertyPaperworkSolutions.com, or 973-462-5733.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 131
Monday, January 10, 2011
The Dilemma of Caretaker Agreements
Agreements pursuant to which a Medicaid applicant can reimburse a child (i.e. Caretaker Agreements) have been discussed in Posts 6, 17, and 34. That is, a child can now be reimbursed if the payments to the child are deemed by the state to be "reasonable". This creates a dilemma as the state will not make an a priori decision regarding the validity of a caretaker agreement. The applicant runs a risk that the amount by which the child is compensated is not deemed by the state to be reasonable. In such event the excess payment to the child by the parent is deemed to be a penalizing transfer.
Therefore, it is important that counsel indicate in his letter that the validity of a Caretaker Agreement is not guaranteed as the state will only honor payments by the parent that are deemed to be "reasonable", and that the parties are at the mercy of the state.
I particularly call your attention to Post 52 in which I suggest the documents to be submitted to support a Caretaker Agreement.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 129
Therefore, it is important that counsel indicate in his letter that the validity of a Caretaker Agreement is not guaranteed as the state will only honor payments by the parent that are deemed to be "reasonable", and that the parties are at the mercy of the state.
I particularly call your attention to Post 52 in which I suggest the documents to be submitted to support a Caretaker Agreement.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 129
Wednesday, January 5, 2011
Ethical Issues Relating to Joining Network Groups
As many attorneys and other professionals have been joining network groups to promote business, the issue arises as to an attorney's ethical obligations. That is, a network group is formed so that the members provide referrals to each of the members of the group.
There is certainly no ethical problem joining a network group unless you are financially penalized for not recommending members of the group.
However, counsel's obligation is always to his client. Therefore, while the joining of a network group is not an ethical problem, making recommendations to individuals in the group rather than to the best professional that counsel knows, violates the obligation attorneys have to provide their clients with the best advice available. This creates a dilemma for an attorney joining a network group who wants to generate work and decides only to refer matters to members of the group. If he or she does so with knowledge of a more competent professional in a particular area, counsel is violating his or her obligation to provide an individual with the best recommendation available.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 130
There is certainly no ethical problem joining a network group unless you are financially penalized for not recommending members of the group.
However, counsel's obligation is always to his client. Therefore, while the joining of a network group is not an ethical problem, making recommendations to individuals in the group rather than to the best professional that counsel knows, violates the obligation attorneys have to provide their clients with the best advice available. This creates a dilemma for an attorney joining a network group who wants to generate work and decides only to refer matters to members of the group. If he or she does so with knowledge of a more competent professional in a particular area, counsel is violating his or her obligation to provide an individual with the best recommendation available.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 130
Monday, January 3, 2011
The Necessity to Use a Qualified Home Care Agency
It is necessary on many occasions to use a qualified home care agency. Below is a description of one of the outstanding home care agencies (Freedom Eldercare) located in Hackensack, New Jersey. The telephone number of Freedom Eldercare is (201) 883-1200 and the fax number is (201) 833-1283.
When choosing home care for a loved one, you should be aware of the risks associated with using a non licensed agency or independent provider.
Liabilities and abuses
Payroll Taxes
Consumers and the families of those receiving care are confronted by a confusing array of federal and state laws. The simplest and most direct requirement is that anyone who gets a paycheck must pay the government any taxes due. This includes social security, Medicare, federal and state unemployment, and state and federal payroll taxes.
When the consumer is the employer and responsible for compliance, and none of these taxes are being paid, the government may sue the consumer or their estate for back taxes, interest and penalties. In a situation where many days of care or many hours each week of care over a long period of time have been delivered, this tax responsibility can be a substantial amount. Other remedies that authorities may seek can include civil fines and criminal penalties.
There are also many problems for workers. No payment into social security leaves them vulnerable in their old age, and no protection is afforded for their periods of unemployment. Also, workers may not be receiving the minimum wage and overtime protection to which they may be entitled.
Worker Related Injuries
This is the most potentially financially devastating result for consumers and workers who are unaware of the employer-employee relationship. If no workers’ compensation protection is provided (as mandated by law for employees for nearly every state), and the worker sustains an on-the-job accident, the liabilities can be substantial. Medical costs, and disability payments for workers could cause financial hardship for even a very wealthy client. For clients who could not afford to pay, the worker could be left with no help for a devastating injury. Many consumers incorrectly assume that homeowner’s insurance will cover this type of loss, when, in fact, homeowner’s insurance usually specifically excludes employees in the home.
Abuse and Exploitation
Most workers who enter the home care industry are caring, giving people. Unfortunately, there are also those who know that it is very easy to take advantage of frail, functionally limited, often cognitively impaired clients. Registries or independent contractor agencies, because they have little ongoing liability and want to avoid being considered as the employer of the worker, may provide inadequate or no background investigations on their caregivers. This could subject clients to physical, psychological or financial abuse. Families of the consumer can help, but time constraints and geographical distances often don’t allow for this.
Supervision of the Worker
Because of Internal Revenue Service regulations, registries and independent contractor agencies cannot provide any substantive work supervision, scheduling, or training to workers in home care without becoming employers. If they do, the company, by law, becomes the employer of the worker. Supervision, scheduling and worker training are important benefits to consumers and workers and are provided only by agencies that hire their workers.
For consumers and their families, hiring a licensed home care agency provides assurance that someone with experience and responsibility is reviewing the changing care needs of the client. The licensed home care agency provides ongoing assessments of the limits of care that individual workers are allowed to provide. They also provide appropriate supervision that can potentially head off, or at least deal with, the sometimes difficult relationship issues that can occur between clients and their care workers.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 128
When choosing home care for a loved one, you should be aware of the risks associated with using a non licensed agency or independent provider.
Liabilities and abuses
Payroll Taxes
Consumers and the families of those receiving care are confronted by a confusing array of federal and state laws. The simplest and most direct requirement is that anyone who gets a paycheck must pay the government any taxes due. This includes social security, Medicare, federal and state unemployment, and state and federal payroll taxes.
When the consumer is the employer and responsible for compliance, and none of these taxes are being paid, the government may sue the consumer or their estate for back taxes, interest and penalties. In a situation where many days of care or many hours each week of care over a long period of time have been delivered, this tax responsibility can be a substantial amount. Other remedies that authorities may seek can include civil fines and criminal penalties.
There are also many problems for workers. No payment into social security leaves them vulnerable in their old age, and no protection is afforded for their periods of unemployment. Also, workers may not be receiving the minimum wage and overtime protection to which they may be entitled.
Worker Related Injuries
This is the most potentially financially devastating result for consumers and workers who are unaware of the employer-employee relationship. If no workers’ compensation protection is provided (as mandated by law for employees for nearly every state), and the worker sustains an on-the-job accident, the liabilities can be substantial. Medical costs, and disability payments for workers could cause financial hardship for even a very wealthy client. For clients who could not afford to pay, the worker could be left with no help for a devastating injury. Many consumers incorrectly assume that homeowner’s insurance will cover this type of loss, when, in fact, homeowner’s insurance usually specifically excludes employees in the home.
Abuse and Exploitation
Most workers who enter the home care industry are caring, giving people. Unfortunately, there are also those who know that it is very easy to take advantage of frail, functionally limited, often cognitively impaired clients. Registries or independent contractor agencies, because they have little ongoing liability and want to avoid being considered as the employer of the worker, may provide inadequate or no background investigations on their caregivers. This could subject clients to physical, psychological or financial abuse. Families of the consumer can help, but time constraints and geographical distances often don’t allow for this.
Supervision of the Worker
Because of Internal Revenue Service regulations, registries and independent contractor agencies cannot provide any substantive work supervision, scheduling, or training to workers in home care without becoming employers. If they do, the company, by law, becomes the employer of the worker. Supervision, scheduling and worker training are important benefits to consumers and workers and are provided only by agencies that hire their workers.
For consumers and their families, hiring a licensed home care agency provides assurance that someone with experience and responsibility is reviewing the changing care needs of the client. The licensed home care agency provides ongoing assessments of the limits of care that individual workers are allowed to provide. They also provide appropriate supervision that can potentially head off, or at least deal with, the sometimes difficult relationship issues that can occur between clients and their care workers.
Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 128
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