Did you know that the federal government regulates funeral homes? I don’t remember seeing that power mentioned in the Constitution, but…
Yes, the Federal Trade Commission (FTC) mandates that people shopping for burial and cremation services must be provided certain information and must be provided itemized price lists for services and caskets so they can compare apples to apples as they shop. For example, prices must be provided over the phone as well as in person, and the funeral home must explain that embalming isn’t always required (no state laws requires routine embalming for every death).
But the FTC isn’t sure how well its rules are actually working, and is asking for your input as to whether the Rule is still needed and what your shopping experience was like.
You can learn more about the FTC’s Funeral Rule and give your input by clicking here.
Caregivers tend to be so over-scheduled that they put off making preparations for a rainy day, like getting legal documents in place. When you feel as if your to-do list gets longer every day, planning for a potential future emergency can take a back seat to juggling your day job, your children, and taking care of your aging relative.
Before you can go to the lawyer and get documents drafted, you need to know what your aging relative’s wishes are. Find out if she has already made any arrangements or signed legal documents. You might not need to do as much as you think. Make sure these documents are not in a safe deposit box, since you will need a court order to open the box after your relative dies if you are not authorized on the account.
Gather all the existing legal papers and go through them with your loved one to see if the documents need to be updated or changed. People often make a Will, for example, and stick it in a drawer. Thirty years later, when the Will gets dusted off for probate court, you discover that none of the beneficiaries of the Will is still alive.
Here are some of the topics you might want to discuss with your relative:
Who should make his medical and financial decisions, if he cannot do so. These might be two different people.
End-of-life decisions about hospice, life support, and organ donation.
What funeral and burial arrangements he would like, if he does not have a pre-paid plan and burial plot.
The organization to which he would like donations sent, in lieu of flowers, if that is his preference.
How he wants his property distributed after death.
Getting the Legal Documents
Once you have compiled all the information and old papers, you and your relative should talk with a lawyer to get documents drafted. Depending on the situation, your loved one might need some or all of these legal papers:
Durable power of attorney for financial decisions, to appoint someone to act on his behalf, if he becomes unable to do so.
Durable power of attorney for health care decisions, so the named person can make medical decisions, if he becomes incapacitated.
HIPAA medical records release, so the person who makes the medical decisions can have access to his medical records to make informed decisions.
Will or living trust, to distribute his assets when he dies.
Depending on his wishes, you might need a Do Not Resuscitate Order (DNR), health care directive with specific instructions about particular types of life support, or Physician Orders for Life-Sustaining Treatment (POLST). Your elder law attorney can guide you toward the correct form for your state.
Once you take these measures, you can relax and enjoy the time you spend with your loved one, knowing you are well-prepared for whatever the future brings.
Your state might have different regulations than the general law of this article. You should talk with an elder law attorney near you.
If you’re on Medicare, your coverage away from home depends partly on your destination and whether you’re on basic Medicare or receive your benefits through an Advantage Plan. It can also can depend on whether the health care you get is routine or due to an emergency.
Travel medical insurance can be the solution to gaps in coverage, but it’s good to first determine whether you need it. Remember that original Medicare consists of Part A and Part B. Retirees who opt to stay with just this coverage—instead of going with an Advantage Plan—typically pair their coverage with a stand-alone prescription-drug plan (Part D). If you fit in this situation, your coverage while traveling in the U.S. and its territories is fairly simple. You can go to any physician or hospital that accepts Medicare, regardless of the type of visit.
However, when you journey beyond U.S. borders, things get more complex.
Generally, Medicare doesn’t provide any coverage when you’re not in the U.S – with a couple of exceptions. These include if you’re on a ship within the territorial waters adjoining the country within six hours of a U.S. port or you’re traveling from state to state but the closest hospital to treat you is in a foreign country. As an example, think about a trip to Alaska via Canada from the 48 contiguous states.
Roughly a third of retirees on original Medicare also buy supplemental coverage through a Medigap policy (but you can’t pair Medigap with an Advantage Plan). Those policies, which are standardized in every state, vary in price and offer coverage for the cost-sharing parts of Medicare, like copays and co-insurance. There are some Medigap policies—Plans C, D, F, G, M and N—that offer coverage for travel. You pay a $250 annual deductible and then 20% of costs up to a lifetime maximum of $50,000. However, that may not go very far, depending on the type of medical services you need.
There’s also no overseas coverage through a Part D prescription drug plan, and Medigap policies don’t cover any costs related to Part D, whether you’re in the U.S. or not. For seniors who get their Medicare benefits—Parts A, B and typically D—through an Advantage Plan, it’s a good idea to review your coverage, even if you’re not leaving the U.S. any time soon. These plans must cover your emergency care anywhere in the U.S., but you may have to pay for routine care outside of their service area or you’ll pay more.
Some Advantage Plans may also have coverage for emergencies overseas, so review your policy. Whether you have an Advantage Plan or original Medicare, travel medical insurance might be a good move if you think your existing coverage isn’t enough. The options are priced based on your age, the length of the coverage and the amount. In addition to providing coverage for necessary health services, a policy usually includes coverage for non-medical required evacuation, lost luggage and dental care required due to an injury.
There’s coverage for a single trip of a couple weeks or several months, or you can buy a multi-trip policy, which could cover a longer time period.
It’s also important to know if your policy covers pre-existing conditions, since some don’t. You should also be aware that some Advantage Plans might disenroll you, if you stay outside of their service area for a certain time, usually six months. In that situation, you’d be switched to original Medicare. If you are disenrolled, you’d have to wait for a special enrollment period to get another Advantage Plan.
Quite often, a person who calls into our office starts the conversation with something along the lines of “I just need a simple Will leaving everything to my son.” Sometimes they do, but, more often than not, their situation really isn’t “simple,” and their current “plan” is a time bomb waiting to destroy their family.
During our conversation, I discover that the caller is 78 years old, divorced, and in poor health due to a chronic disease. She has three adult children, about $300,000 in assets including her home, and has added the oldest son as a joint owner on her bank accounts, safe deposit box, and her home. She has no long-term care insurance, Durable Power of Attorney, Designation of Health Care Surrogate, or Living Will. She’s calling about a Will because a friend told her that she needs a Will to avoid probate when she dies.
First, I explain that her well-meaning friend was incorrect – a Will actually mandates probate. A Will tells the probate judge who gets the assets that are subject to probate after the court proceeding is done in 6-9 months. Probate can be avoided by other strategies, but those strategies also have some drawbacks that need to be evaluated for each situation.
Then I ask why she’s disinheriting her other children. “Oh, no,” she says. “I’m not disinheriting my other children. I love them. I’m leaving everything to my son because that’s much simpler for me, and he’ll share with his siblings.”
Maybe he will, maybe he won’t. The fact is, most of the time, he won’t. I know, because I get those calls, too, from the siblings who didn’t know their brother would inherit everything and they’re legally entitled to nothing. Mom’s wishes are just that – wishes.
I explain that by naming her son as her sole beneficiary in her Will and as joint owner on her bank accounts and home, her other children will be legally entitled to nothing. Her son will have absolutely no legal obligation to share one cent with anyone when she dies. He will be the sole legal owner. Siblings are notorious for spats and rivalry. The fact that she left everything to him – no matter what her thoughts and wishes were – will deeply hurt her other children and could permanently ruin their relationship with their brother and tarnish their memory of their mother.
In addition, while she’s alive, her bank account and home are wide open to her son’s creditors – including accident victims, the IRS, and a divorcing spouse. Not only that, but by adding him as a joint owner on her home that she’s owned for 30 years, he’s stuck with her low cost basis in the home and he’ll likely end up paying capital gains taxes when he sells it at her death. But if her children inherited the home at her death, they’d inherit it at the higher fair market value as of her date of death, and likely owe no capital gains taxes if they sell it immediately.
Then I ask why she doesn’t have a Durable Power of Attorney, which names the people who would have the legal right to act on her behalf for financial or legal matters – pay her bills, sign contracts, sue, sell property, open and close bank accounts, talk to the IRS, apply for Medicaid, etc. She says, “But I don’t need that. My son is on my bank accounts and house, so he can handle anything that needs to be done with those.” I explain that no, he can’t. Yes, he can sign checks, but he can’t legally speak for or sign anything on her behalf. He can’t sell or mortgage the house by himself. And even worse, if her health gets to the point where a nursing home is needed, he can’t hire an elder law attorney to get her qualified for Medicaid unless he goes to guardianship court.
She never heard of a Designation of Health Care Surrogate. She assumed her son would easily be able to make medical decisions for her because he’s her son. I explain, that yes, under Florida law, since she’s not married, her children are authorized under our statute to make medical decisions for her. But the statute doesn’t say which child – all the children have equal status. So, which child should the doctors listen to? What if the children disagree about something or one beats the others to the punch when a decision has to be made? A Designation of Health Care Surrogate solves those problems.
I then ask whether she’s ever discussed her end-of-life wishes with her children. “No,” she says. “Every time I bring it up, they don’t want to listen and change the subject.” So, her children could end up arguing over whether or not they should “pull the plug.” No matter what they decide, if they love her, they may have lifelong guilt because they’ll fear they made the wrong decision. I explain that a Living Will allows her to state her desire to die a natural death – not be hooked up to nutrition, hydration or respiration – when there’s no reasonable hope for recovery, and her Health Care Surrogate must enforce that on her behalf. This simple document takes that awful decision-making burden off her children’s shoulders.
At the end of our conversation, she may or may not decide to change her plan to make it more family-friendly, but at least now she has a better understanding of what her choices mean for her family.
They’re afraid their children will take their victimization as a sign that they are no longer able to care for themselves and they’ll lose their independence. However, there are ways children can help their parents protect themselves with empathy and kindness.
Grown children should gently discuss the topic of their parents’ vulnerability. The conversation needs to be non-patronizing. Studies have shown that people become less skeptical and more impulsive as they age. The scammers know this, and they prey on the elderly for this reason. They also know where the money is: seniors lose an estimated $36.5 billion to scammers every year.
The scammers are also aware that open lines of communication between elderly parents and their children can cause a scam to fail. If a parent and child are in regular communication, the scammer’s plea that the grandson has been arrested and needs bail money won’t work. The grandparents need only send a text to learn that their grandson is alive and well on their college campus.
In one such case, the predatory scammer told the elderly couple not to notify their grandson’s parents so they could avoid a family scandal. The couple sent the scammers two large payments before realizing they were being duped. When they finally notified their son and the entire story came out, they agreed to accept his help in avoiding being scammed again.
Keeping the conversation as light as possible will make it easier for everyone. A simple “Hey Mom, did you hear about this scam?” is going to be a lot easier to take than a “Can you believe anyone was that stupid to fall for this?” approach. Add the question “What would you do if you got a call like that?” Once a conversation has started, it will be easier to transition into other concerns.
Remember that this generation was raised with different social rules. They were taught to be polite and may hesitate to cut off a fast talker. A script written on a pad kept by the phone may be helpful: “I don’t do business over the phone until I speak with my son. Goodbye.”
People who are now in their 70s and 80s grew up in a world without smartphones or computers. They may find basic technology a little confusing, even if they are fans of how easy it is to stay in touch with grandchildren. They often do recognize that they need help and are likely to defer to children or grandchildren when accepting help with technology issues.
One more generational issue to address: carrying a Social Security card in a wallet. These numbers are a gold mine for scammers, which is why the numbers no longer appear on Medicare cards. Ask where this card is kept, and make sure it’s in a secure place.
The best time to have these conversations is early, before a scam occurs and while aging parents are still sharp enough to fully understand the issues being addressed.
Raising your kids, working, trying to take care of yourself, and now caring for an aging parent? That makes you part of the Sandwich Generation. You are not alone—almost half of America’s 40-60 year olds are in the same boat.
Most of us have adjusted to balancing children, work and finding some time for ourselves. But when we add caring for an aging parent, it often becomes too much. And usually it’s the “me” part that is sacrificed…until you hit burn out.
Here are some ways to leverage your time and resources so you can also take care of yourself.
Enlist Your Kids
Even the smallest child can spend charming one-on-one time with a grandparent. If your parent lives with or near you, they can spend time together in person. Adult children can take Grandma or Grandpa out for a meal or a movie – or spend an evening sharing a pizza and watching Netflix. If your parent is not near you, they can Skype on the computer, use FaceTime or play multi-player online games. Your children, no matter what their ages, will benefit from spending time with Grandma or Grandpa, they will see how you value and care for aging family members—and you will get some extra time to return phone calls, make dinner, or even catch a quick nap!
Ask About Options at Work
Check with your employer’s human resources department about resources that might be available to you. Depending on how long you expect to be caring for your parent, there may be a multitude of options available to you, including elder care research and referral services, flex time, even working from home options. The Family and Medical Leave Act (FMLA) calls for eligible employees to receive 12 weeks of unpaid job-protected leave. (Private employers with less than 50 employees are exempt.)
There are legal and community resources that can help you make the best care and financial decisions for your parent. A local Elder Law attorney can prepare the necessary legal documents and help you maximize your parent’s income, long-term care insurance and retirement savings, and qualify for VA or Medicaid benefits, if applicable. He/she will also be familiar with various living communities in the area and in-home care agencies. You can also hire someone to review and verify/dispute insurance claims and medical billing.
Find Your “Me” Time
As a member of the Sandwich Generation, stress is your biggest enemy and you have to find ways to reduce it. Joining a caregiver group, in person or online, will let you share your questions and frustrations, and learn how other caregivers are coping. Don’t be afraid to ask favors of friends and other relatives, such as picking up your kids while you go to the doctor with your parent. You could also learn to order in dinner every now and then without feeling guilty. Learn what you need to maintain your stamina, energy and positive outlook. That may include regular exercise (a yoga class, walk or run), a weekly outing with friends, or time to read or simply watch TV.
Many people who identify as lesbian, gay, bisexual, or transgender (LGBT) report having significant fear of discrimination and mistreatment as they age. Many LGBT older adults experience violations of their rights when they try to access long-term care services and supports. Surveys have revealed concerns about discrimination by the staff and negative treatment by other residents, including verbal harassment and physical abuse. If you’re facing this situation, you need to know your rights as LGBT residents in nursing homes.
Federal nursing home regulations and state and federal anti-discrimination laws protect all residents living in nursing homes, including LGBT individuals, from discrimination, harassment, and abuse. You need to know the laws that protect you so you can take action when someone violates your rights.
If a long-term care facility receives any Medicare or Medicaid funding or has Medicare or Medicaid certification, even if no current resident receives this funding, the facility must honor the following rights. The individual resident in a care center has these rights, whether he receives Medicare or Medicaid funding or not.
Freedom from abuse. The facility must develop and follow policies that prohibit mistreatment of residents, including things like physical, mental, verbal, sexual, or financial abuse or neglect. The center must investigate and take action on allegations of abuse or neglect. Harassing a resident or refusing to provide good care based on a resident’s sexual orientation or gender identity violates the right to be free from abuse.
The right to privacy includes the right to private communications, whether in-person or through electronic or any other means. The facility must also maximize the resident’s right to privacy about his body and his medical, personal and financial matters.
The facility cannot restrict the right of a resident to receive visitors based on gender identity or sexual orientation. This issue comes up when a facility treats same-sex spouses or same-sex domestic partners different than different-sex couples.
The right to participate in activities includes taking part in events of a religious, community, or social nature within and outside the facility. The staff cannot prevent you from taking part because of your sexual orientation or gender identity. You should be allowed to be involved in and promote LGBT events, support groups and other resources without concern about abuse or discrimination.
The guarantee of respectful treatment includes dignity, respect, and consideration and being allowed to make your own decisions. This right also mandates you be addressed by your preferred pronoun and wear clothing and groom yourself, according to your gender identity.
The right to participate in your care, includes designating someone as your decision-maker for medical, financial and other matters. Federal law protects the right to name your same-sex spouse as your legal representative. The nursing home must treat a same-sex spouse decision-maker the same as a different-sex spouse legal representative.
The right to be fully informed protects a same-sex spouse’s right to the same information as a different-sex spouse.
Your right to make your own choices includes what you wear and how you express yourself. You can choose to share a room with the person of your selection, as long as both people agree. The facility cannot discriminate on the basis of gender identity, sexual orientation, or marital status.
The right to remain in the home bans the facility from discharging a resident on the basis of sexual orientation or gender identity.
Federal law orders nursing home staff to protect all residents from abuse and neglect, and to promptly report and investigate allegations of mistreatment. You can also contact your state’s ombudsman for long-term care to advocate for you.
An elder law attorney near you can explain if and how your state’s regulations may differ from the general law of this article.
Officials at the Department of Veterans Affairs said they reviewed 130,000 cases over the summer to look for errors. Many of these were simple clerical mistakes or disability ratings changes, after veterans settled on their loans.
The Military Times’ recent article entitled “VA refunds $400 million in mistaken home loan fees” explains that with the current regulations, veterans and service members must pay a VA funding fee when they apply for a VA home loan. This charge can be between 0.5 and 3.3% of the total loan. The money is supposed to pay some administration costs for the department. Disabled veterans are exempt from this fee.
However, an inspector general report released earlier in 2019 found that roughly 53,000 disabled veterans were charged these fees in recent years.
VA officials announced in May that they would review current and past loans, and contact veterans eligible for refunds.
In a statement, Veterans Affairs Secretary Robert Wilkie explained that the effort stretched back as far as 20 years. “Our administration prioritized fixing the problems and paid veterans what they were owed.”
The total amount of the payouts was significantly higher than the nearly $290 million total investigators estimated earlier this year.
The refunds ranged from a few thousand dollars to more than $20,000 for some vets.
Veterans Affairs officials also announced a new policy guidance for lenders to make certain that they’re asking veterans applying for the loans about their disability status. The VA also has created new internal processes for oversight over future loan applications which may be eligible for waived fees.
The Department of Veterans Affairs has also planned new outreach efforts to help get the word out to veterans about the waivers they’re eligible to receive.
VA officials said they believe that their review of the issue is now complete. However, any veterans who think they may be entitled to a refund for mistaken fees can contact the department’s regional loan center office at (877) 827-3702 or visit the VA’s website for more information.
Getting enough good sleep is vastly undervalued in today’s society. Younger working people like to brag about being able to function on only a few hours of sleep at night. But researchers have discovered that sleep deprivation can lead to cognitive decline, diabetes, obesity, depression and other problems. If you’re a senior and have trouble sleeping, you need to find the root cause. Here are some of the things that can cause insomnia in seniors:
If you experience severe insomnia despite your best efforts, talk to your doctor. Sometimes insomnia is a sign of a medical problem, such as sleep apnea. Treating the underlying cause may reduce or eliminate your sleep issues.
Your prescription and over-the-counter medications could be sabotaging your sleep and making you unhealthy. Ask your doctor if any of your medications – or the combination of them – could be causing or contributing to your inability to sleep well. Find out if there are other drugs you could take that won’t interfere with your nighttime rest.
Many people count the days until they can throw away the alarm clock when they retire. But one of the side effects of “late to bed, late to rise” is that your body clock can lose its way. If you don’t keep a regular schedule, your body might release melatonin in the afternoon, making you groggy in the afternoon and making sleep elusive at night.
Taking a nap too late in the day or for too long can interfere with your ability to get a good night’s sleep. The ideal time for napping is between 1:00 and 3:00 p.m. You should also set an alarm so you don’t nap too long. The optimal nap length will vary from one person to the next, but the most effective range to avoid insomnia is between 20 minutes and one hour.
Hot flashes and night sweats can cause menopausal women to wake up multiple times during the night. Wear pajamas that wick away moisture. Avoid bedding material, such as memory foam mattresses, that can hold heat. Make sure your sheets, pillows, and pillowcases have cooling technology.
The blue light in cell phones, tablets, and computers can interfere with the body’s ability to produce melatonin. Without the appropriate amount of melatonin, you could have difficulty falling or staying asleep. The standard recommendation is to “unplug” by turning off these devices about an hour before you want to go to sleep. For some people, however, blue light exposure during the three or four hours before bedtime can cause insomnia. Sleep researchers say you can still watch television and use your devices in the evening if you wear special glasses that block blue light. And some electronic devices, such as the Kindle Fire, will allow you to block blue light, as desired (I personally set my Kindle Fire to Blue Shade for reading and jigsaw puzzles before bedtime and sleep very well).
Some people can drink a nightcap shortly before bed and fall asleep without any difficulty. A glass of wine or a cocktail can help you relax and de-stress, but for some people, an alcoholic drink too close to bedtime can mess up your sleep cycle, causing you to wake up during the night. To avoid insomnia, experts recommend you have that drink several hours before you want to go to sleep.
Florida is one of the early states permitting residents to have Wills, along with some other types of estate planning documents, signed and completed electronically and online. This will require remote notarizations and witnesses to appear via certain approved secure video chat services, reports News Chief in the article “Electronic wills are coming, but are they a good idea?”
A movement to pass a similar law failed in 2017, as the result of a veto by then Governor Scott. However, a revised and approved version of the bill passed this summer and was signed into law by Governor DeSantis.
Under the new law, notaries who wish to be able to conduct executions of electronic Wills will be required to undergo additional training. Certain qualified and “state-approved” custodians will oversee safeguarding the completed electronic Wills for safekeeping until the creator of the Will dies, at which time the electronic Wills will be electronically filed with the appropriate probate court.
Florida is only the fourth state to implement laws related to the execution and storage requirements for electronic Wills. One concern is whether other states will honor these documents.
If other states won’t accept the electronic Wills, then a deceased person’s assets that are subject to probate administration in other states may not go to the person’s intended beneficiaries. Traditional, hard copy Will executions typically occur in an attorney’s office, with proper procedures and safeguards put into place by a licensed attorney who practices in this area of the law. Many of these same procedures and safeguards won’t be in place for electronic execution of electronic Wills.
There is concern that these Wills present an enticing target and that many family members will argue that the Will is not valid, because of undue influence or a lack of capacity.
The 2019 version of the law has some safeguards that attempt to protect vulnerable adults. However, until these electronic Wills go through probate contests, there won’t be much clarity for estate planning attorneys. A big concern is that if the documents can be executed electronically, there could be greater opportunities for criminals or people with bad intentions to more easily take advantage of vulnerable seniors.
Other concerns include: what fees will be charged by the state-approved custodians to lawyers who wish to create such documents; how much will the recurring custodial fees cost the person who signs the Will; what happens to the Will if the custodial fees aren’t paid; and how will the electronic custodians know someone died if they don’t die in Florida?
Whether you agree that electronic Wills are the future, this is still a very new process that has yet to be tried and tested. There will likely be more questions raised in the next few years about their safety and cases will be taken to court to resolve issues and challenges.
For most people, this is the time to wait and see how the electronic Will scenario works out. It may take a few years before the bumps are ironed out. In the meantime, meet with an estate planning attorney to create an estate plan that is on paper and follows a traditional process.