Maryland Elder Law

This office has recommended, and most estate planners will agree, that one should consider appointing a trusted individual to make health care decisions for you in the event you are unable to do so. I wrote a comprehensive article on that topic on October 7, 2007.

Maryland law not only allows one to appoint a Health Care Agent, the statute provides forms one may use to do so. While I have always recommended that one seek experienced legal counsel when appointing a Health Care Agent - one of the statutory forms curiously omits a significant provision - such advice is even more compelling in light of a new ruling by Maryland’s Attorney General.

Maryland’s Health Care Decision Act enables a person both to appoint a Health Care Agent to make Medical Decisions for you in the event you are unable to do so for yourself, and to state your intentions concerning end of life treatment in certain circumstances: if death from a terminal condition is imminent, if you are in a persistent vegetative state or coma, or if you are in an end stage condition as a consequence of a terminal disease.

There are forms in the statute to effectuate both of these purposes, designated Parts A and B of the statutory advance directive form. In the typical circumstance, an individual will complete both forms, even if the individual intends that the determination of his health care agent, whether it be that individual’s spouse, adult child, or other appropriate individual, will prevail notwithstanding the choices made in Part B, the end of life health care instructions.

For example, one may check the boxes on the form requesting that treatment be provided in the three circumstances discussed above, while at the same time relying on her spouse or other chosen agent to make the decision when “enough is enough” and authorize removal of life support. Nobody wants to become the next Terry Schiavo, the woman who lived in a permanent coma for 15 years while a legal battle raged between her husband and her parents over whether or not to remove her feeding tube.

However, according to Maryland’s Attorney General, once you make your choices on Part B of Maryland’s advance directive form, you will be locked in to those choices even if your advance directive explicitly states that your chosen Health Care Agent may override those choices.

Consequently, some respected elder law attorneys not only recommend foregoing implementation of the Health Care Decisions section (Part B) of Maryland’s statutory advance directive, but refuse to assist clients in appointing a Health Care Agent altogether. While both appointing a Health Care Agent and also completing Part B of the Advance Directive may be problematic, refusing to assist with the appointment of a Health Care Agent seems to be a cure worse than the ill.

Instead of such a drastic response, the Gatesman Law Office recommends that you have a frank discussion with your attorney and that you consider all the implications of your future health care choices. We recommend that you employ legal documents that will enable you to achieve your objectives without tying the hands of those you have appointed to assist you.

Now more than ever, it is important that you seek the guidance of knowledgeable legal counsel when deciding whether to employ the health care decision-making forms provided by Maryland’s Health Care Decisions Act.

Much of elder law practice revolves around dollars and cents, dealing, for example, with questions of how to save the house to pass onto future generations, how to find alternative sources of payment for nursing home care, or how to avoid estate taxes, to name but a few. However, elder law practice involves much more than that.

In my elder law practice, I counsel clients dealing with significant life changing circumstances. While it is clear that people suffer grief when their spouse, parent, or other loved one dies, it may not occur to some that other events likewise will trigger the grief cycle.

Such circumstances include a spouse or other significant person in one’s life taking up permanent residence in a nursing home, the appointment of a guardian for a dear companion due to the intervention of a third party, or actions taken by close family members who call into question one’s loyalty, such as a groundless challenge to one’s faithfulness as agent under a power of attorney or as trustee under a trust.

In these and similar situations, one suffers a loss not unlike the loss suffered when someone dies, and the typical response to such loss is grief.

Elisabeth Kübler-Ross, who studied cancer patients in the late 1960’s, proposed five stages of grief:

• Denial: “This can’t be happening to me.”
• Anger: “Why is this happening? Who is to blame?”
• Bargaining: “Make this not happen, and in return I will ____.”
• Depression: “I’m too sad to do anything.”
• Acceptance: “I’m at peace with what is going to happen/has happened.

Kübler-Ross suggests that one necessarily must pass through these various stages of grief before one will find peace with the situation. Having suffered a grievous loss myself, I contend that it is helpful to understand these stages to give one hope for the future.

These stages are not mere labels. The anger one feels can be intense, the depression can be deep and seemingly unending. To recognize that this is a natural response to any significant loss may help one cope with the various stages, understanding that eventually one will learn to accept the situation and once again find inner peace.

Remembering that it is not only the loss brought on by the death of a loved one that causes grief, and that grief may arise in other situations as well will help bring perspective to one’s situation.

There are numerous internet resources that address the grieving process. Listed below are a few web links to assist you in learning more about the grieving process.

Helpguid.org

Mental Health Information Service

Changing Minds.org

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Some families make large gifts to family members — to enable a child to purchase a house, for example, or to assist a grandchild by paying college expenses. Others make the conscious choice to make a large gift of assets to their children to ensure that those funds will stand in the place of an inheritance should the parents ever require long term care in a nursing home. Without such large gift, those funds might otherwise be depleted by high nursing home costs.

Considering Future Medicaid Eligibility

When making such gifts, seniors must pay close attention to the affect such gifts would have on their ability to obtain government benefits to pay for future nursing home care. As long as sufficient time passes from the time of the gift and an application for Medicaid benefits, those assets will be protected and the gift-giver’s children will not be required to pay back the gift to cover the gift-giver’s care costs.

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We have added a page to our website to provide our clients with forms they may need to facilitate our representation. You may access that page by clicking on the word “Forms” in the menu at the top of this page.

One of the documents in the Forms directory is a Memorandum listing the items one needs to provide to us to support a Medicaid application .

Battley v. Banks (Md. App. December 20, 2007)

The Gatesman Law Office assists clients in the appointment of a guardian for persons who become incapacitated and cannot make personal or financial decisions for themselves. Guardians are entitled to be compensated for their services, but they must petition the guardianship court for approval of such compensation.

When the disabled person, called the “ward” of the court, dies, the guardian must prepare a final account of the ward’s assets. That account should include the guardian’s final request for compensation.

Whether the guardian may pay such compensation to himself out of the guardianship assets before the ward’s assets are turned over the personal representative of the ward’s probate estate depended on the county in which the ward resided. The courts in different counties applied different rules.

Now, however, the rule is clear. Read more

Schoukroun v. Karsenty (Md. App. December 11, 2007). A Technical Article for Maryland Elder Law and Estate Planning Attorneys

The Maryland Court of Special Appeals, in a seismic shift to the estates and trusts law of Maryland, issued an opinion on December 11, 2007, imposing augmented estate rules on the State of Maryland. This decision has significant consequences affecting Medicaid asset preservation planners, estate planners, family law practitioners and CPAs.

Prior to this decision, the Maryland legislature, despite years long advocacy by some members of the Estates and Trusts section of the Maryland State Bar Association, refused to add augmented estate rules to the estates and trusts law of Maryland.

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Many seniors have heard that giving assets to one’s children is a way to safeguard those assets so that they will pass on to the younger generation upon the senior’s death even if nursing home care is required. However, the law governing Medicaid has changed and it now appears that Medicaid will not be available to those who make such gifts.

Nevertheless, while the strategy of making gifts to children in anticipation of requiring nursing home care is much more complex under the new law, it still may be possible for you to preserve assets in this manner.

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A technical notice for Maryland elder law professionals.

When a homeowner executes a deed retaining for himself a life estate, such action will be considered a transfer of resources for Medicaid eligibility purposes. However, the homeowner has not given away the entire property. What the homeowner has given away is a remainder interest, that is, the right to own the property after the homeowner dies.

The value of the transferred remainder interest depends on the age of the homeowner who retains the life estate. Maryland uses a table, Schedule MA-7, to assign value both to the transferred remainder interest and to the retained life estate. You may view that table by clicking here: Life Estate and Remainder Interest Table.

Medicaid law allows an individual whose spouse needs nursing home care to keep as much as $101,640 in 2007, as well as the house, a car, certain life insurance policies and a few other assets. But this rule is misleading. Consider the following example.

Husband and Wife own a house, a car, and $100,000 in investment assets. Suppose that Husband needs to go to a nursing home. One would think he could get Medicaid immediately because there is only $100,000. However, the rule says that the spouse in the community can keep half of the total assets (the house and car are exempt and not included in this computation) but not more than the maximum amount, or $101,640.

In other words, in this example, Medicaid will not pay the nursing home costs until the couple has spent $50,000 because Wife is allowed to keep only half of the $100,000 they had when Husband entered the nursing home.

Is this the end of the story, or can Wife do something to enable her to keep the whole $100,000?

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