The following tips from Dr. Robert Luchi, a Professor of Medicine-Geriatrics, and from About.com can help seniors beat the heat:

* If you don’t have air conditioning head to to the shopping mall, senior center, library, movie theater, or place of worship, and plan to spend some time there in the cool air.

* Cool baths or showers can provide relief. Ice bags and wet towels are also helpful.

* Beware of dehydration. Drink water before outdoor activities and drink water at regular intervals during the day, even if you are not thirsty. Avoid beverages with caffeine or alcoholic beverages because such drinks can lead to dehydration.

* Curtail physical activity during extremely hot weather. Activity adds to heart strain. If you must do something outside, take frequent rest breaks, preferably in the shade. Try to schedule outdoor activities for cooler times of the day–before 10 a.m. and after 6 p.m.

* Avoid heavy meals. Limit salt use.

* Wearing loose fitting, lightweight clothing will allow for good air circulation around your body.

* Use a hat or umbrella to protect your head and neck from sun exposure and be sure to use sunscreen with an SPF of 15 or greater anytime you go outside.

* Take the heat seriously. Dizziness, rapid heartbeat, diarrhea, nausea, headache, chest pain, mental changes or breathing problems are warning signs that you should seek immediate medical attention.

* If you have a chronic medical problem, talk with your doctor about additional precautions you should take to prevent heat related illness. Some conditions and medications may place you at higher risk.

* If you show any signs of heat related illness try to get to a cooler place as soon as possible, sip some cool fluids and sponge yourself off with with lukewarm tap water.

The Gatesman Law Office wishes you a safe and healthy summertime.

Some time later, Mother needs long term care in a nursing home.  Unfortunately, she has only $1,000 in the bank and has been subsisting month to month on her income.  So you help your mother to apply for  Medicaid benefits to cover her nursing home costs.

The Medicaid caseworker accepts your application and does nothing for several months.  The nursing home, knowing that you have applied for Medicaid, requires that your mother only pay her income to the nursing home per month, which she must do in order to get Medicaid.  However, such payment is substantially less than the $8,500 per month the nursing would cost without Medicaid.

Five months after filing the Medicaid application, which is a typical application processing period, the caseworker informs you that mother’s contributions to the household expenses and the telephone bill will be treated as gifts to you, causing your mother to be ineligible for Medicaid.  In response, the nursing home sends you a bill for $40,000 for five months of care and will start billing $8,500 per month for future months.

“That’s outrageous,”  you exclaim, “my mother simply paid for the cost of heating and cooling her living space and for her private telephone line!  Those were not gifts to me!”

Outrageous as that may seem, it is true that the Medicaid rules penalize that type of cost sharing unless it is supported by a contract between you and your mother.

For this reason, any time a senior family member is contemplating entering into a financial transaction or co-living arrangement with another family member, it is wise to seek competent legal counsel.   Indeed, seemingly commonsense actions could have far reaching adverse consequences if nursing home care ever becomes a necessity.

The Gatesman Law Office stands ready to assist your family in doing appropriate planning to ensure that such surprises do not occur in your life or the lives of your parents.

Recently, the Gatesman Law Office had been assisting a family in revising the distribution pattern under their estate plan. Husband and wife each had a revocable trust, which trusts held property in further trust for one of their children after both husband and wife died. The share for their other child was to be given to him outright, free of trust.

However, as time passed, the conditions that prompted the desire to hold property in trust for the couple’s now adult child no longer existed and they were in the process of revising their revocable trusts to eliminate the trust for such adult child.

Then, suddenly and unexpectedly, husband died. As a consequence, husband could no longer amend his revocable trust. While wife, who survived her husband, was now the trustee and beneficiary of husband’s trust, she did not have the power to amend the trust to change how trust assets would be distributed after her death.

Nevertheless, because legal counsel had been working with this family for years and knew the estate planning objectives of both husband and wife, and because husband had been in the process of revising his trust when he died, legal counsel devised a plan to validate that old saw, “there is more than one way to skin a cat.”

The plan worked like this. In addition to amending the distribution of his trust, husband was in the process of changing the designated successor trustees so that his children would serve as such successors. So, legal counsel prepared a contract between wife, acting as Trustee of husband’s trust, and the two children, whereby the two children would agree to serve as successor trustees under the trust should wife cease to serve, in exchange for which, the trust would distribute the property to the children at wife’s death in the manner that husband desired.

Because this was a valid contract, and there was a quid pro quo between the parties, the wife and her children were able to effectively change the distribution pattern in husband’s trust to meet husband’s objectives, even after husband had died. Such method of revising the trust, although unorthodox, is legal and effective.

In this and other ways, the Gatesman Law Office stands ready to provide you with creative solutions to any unusual or unique legal problems you may be facing.

For all adults, now is a good time to review your estate plan to make sure that your plan is in order to meet your changing needs.  Have you executed a Power of Attorney to ensure that a trusted agent can manage your financial affairs should you become incapacitated?  Do you have an advance health care directive to ensure that appropriate medical choices are made even if you cannot communicate those choices to your health care providers?

Are the individuals you have chosen to serve as your agents in those documents still the best choices, or have your or their circumstances changed significantly so that choosing other agents is appropriate?

Do you have a Will?  Does your will impose limits because your children were minors when you wrote it, limits that are no longer appropriate?

By asking yourself these and other questions, you will discover whether it is time to review your estate plan with your legal counsel.  This type of periodic review of your estate plan will ensure that your plan continues to meet your needs even as your needs change over the years.

Happy autumn from the Gatesman Law Office.

The period of ineligibility is determined by dividing the amount of the gift (or the aggregate amount of all gifts) by the penalty divisor.  The penalty divisor has been $4,300 for many years.  For Medicaid applications filed on or after June 1, 2009, the penalty divisor will be $6,800.  Using the new divisor, a gift of $68,000 will cause a Medicaid ineligibility period of 10 months, six months less than the penalty that would have been imposed using the old divisor.

Please contact the Gatesman Law Office to learn more about how this change may affect you.

To learn more, you may log onto the online Medicare Open Enrollment Center by clicking -Here-

In Maryland, the Medicaid authorities consider the assessed value of real property for property tax purposes to be the fair market value of such property. This assumption is used, for example, to determine whether a house is transferred to a family member for less than full value. Hence, if a parent conveys a house with an assessed value of $400,000 to her son or daughter, and the child pays the parent only $200,000 for the property, then Maryland considers the transfer to be a gift of $200,000 from parent to child and penalizes the parent with Medicaid ineligibility. Remember, an individual will be ineligible for Maryland Medicaid one month for each $4,300 given away. Hence, such $200,000 gift gives rise to more than 46 months of Medicaid ineligibility. Such period of ineligibility would be longer if the child pays nothing for the property.

Concern arises in a falling real estate market where a house assessed at $400,000 will only fetch $380,000 when sold to an unrelated third party buyer in an arms-length transaction. Clients have been asking me: Will the state consider that I have given away $20,000 when I sell my house?

The problem is compounded in a situation where a realtor has determined that such house will sell for only $380,000, and the house is listed on the open market at that price. After many months of attracting no full price bids, the child of the seller decides to buy it at the offering price, a price that is in line with comparable houses that have recently sold in the neighborhood. Even though by all standard business measures this price would be considered fair market value, the question again arises: Would the state consider that the seller made a $20,000 gift when selling the property?

These are valid concerns, especially now that any Medicaid ineligibility period for a gift of assets does not begin to run until the seller of the property is out of money, residing in a nursing home, and would otherwise (but for such gift) qualify for Medicaid benefits. In other words, if such transaction is considered to be a gift, the adverse consequences of such transaction will not occur until after the seller is impoverished and resides in a nursing home with no personal assets remaining to pay for her care.

There are ways to deal with this problem, either before or after the transaction has occured. Prudence suggests that seniors whose real property has declined in value seek competent legal counsel before transferring their real property so that the transaction may be structured to avoid possible Medicaid ineligibility in the future.

The practice with lawyers is different, however, and people may put themselves in peril if they do not periodically review their affairs with their attorney.

Occasionally, a client for whom I prepared estate planning documents 10 or 15 years ago will call on me to review their estate plan, but that is not typical.  Even less typical is a client who seeks a more frequent review of his estate plan.

Many changes have occurred in recent years, all of them likely affecting one’s estate plan to a greater or lesser degree.  Maryland’s Health Care Decisions Act of many years ago changed the list of situations in which one’s written end-of-life instructions would be applicable.  A “living will” created before this change in the law may not operate as intended in all of those situations.

The Federal privacy law known as HIPPAA has imposed restrictions on who can access your medical information.  If your medical power of attorney does not grant your agent access under HIPPAA, he or she will be locked out, potentially unable to obtain the information needed to assist you in making a decision if a medical crisis should arise.

Federal estate tax law has changed dramatically.  I still see wills and trusts which employ formula language that is outdated and may result in adverse unintended consequences for people who die in 2010 or later.

Maryland and D.C. estate tax law likewise has changed so that now it is not sufficient to rely on formula estate planning language based only on Federal law.  Before the recent changes, because the state and Federal estate tax systems were unified, such reliance was proper.  Now, unless your will or trust contains provisions that specifically address state law, after you die your estate may have to pay state estate tax that otherwise could have been avoided.

Are you still making gifts of $10,000 per year per person, having been advised by your attorney or accountant some years ago that this “annual exclusion” is the sheltered amount, the amount you may give to any one person without worrying about gift tax consequences?  The law has changed and you may now give larger gifts free of gift tax consequences.

Also, did you know that you can give more than the annual exclusion amount, up to one million dollars or more and still not pay any gift taxes?  Many people do not know this even though there are many estate planning and elder law strategies that will enable you to preserve assets for your family that are based upon this gift tax credit.

For example, making a large gift of assets may enable you to keep all of your assets available for your spouse, or to preserve your children’s inheritance, should you ever require nursing home care.  Often, the best time to do such planning is after one enters a nursing home, and you may have set up your estate plan intending for your agent under your power of attorney to take the necessary steps to shelter your resources.  Many powers of attorney prepared by estate planners who are not well versed in elder law, however, limit the power of your agent to make only annual exclusion gifts.  This may not be in your best interests, and a review of your power of attorney by a qualified elder law attorney would enable you to change your estate plan before you lose the ability to do so.

Medicaid law, too, has undergone radical changes.  While it is still possible to ensure that one’s spouse can keep all of the assets if one enters a nursing home, or to set up your affairs to shelter the assets you intend to pass on to your children after you die, it has become much harder to do so.  In some instances, it may be necessary to change your will, or to convert a revocable trust-based estate plan into a plan that relies on wills as your primary post-death estate planning vehicle.

While people are not in the habit of doing so, a regular review of your estate plan with your estate planning lawyer every few years would enable you to keep abreast of the changes in the law that may affect your plan and allow you to make any changes in your plan to ensure that it will operate as you intended in light of such changes.  Moreover, seeking the advice of an estate planner who is well versed in elder law would enable you to better plan for the future.

Making the small investment in such a regular legal check-up would ensure that you do not suffer a more costly consequence should your estate plan not take into account the current state of the law.

In the past, there was a limit on the equity value of one’s automobile. If the car was worth more than a certain amount, then the owner or the owner’s spouse might not be eligible for Medicaid (depending on what other assets were in hand). Now, in Maryland one may own a car of any value. In fact, one may own ten cars, and none of them will be counted for Medicaid eligibility purposes.

The law used to impose strict requirements on income producing property. If one owned an income producing property with an equity value of $6,000 or less, and that asset produced a minimum 6% return on the investment, then the asset was not counted in the Medicaid eligibility process. Now Maryland allows one to keep income producing property of any value as long as that property produces income that is reasonable.

Conceivably, then, one may own 30 rental townhouses worth $2,000,000 and as long as those properties return fair market value rent, these assets may be disregarded when determining whether the owner’s spouse would be eligible to receive Medicaid for nursing home care. [If a single person owned this much income producing property, then her income would be so high that Medicaid would not be needed.]

Also, jointly owned property will be valued at zero for purposes of the Medicaid eligibility determination if the joint owner would refuse to participate in a sale of the property.

These and other special rules make it possible to preserve more assets than one might think if nursing home care should become necessary.

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.