Welcome to My Blog

Attorney Michael MillonigHi,

I’m Michael Millonig, and you’ve managed to find your way to my blog.

As an attorney who specializes in elder law, I know that there are a lot of elder care issues facing adults with elderly parents that don’t necessarily either require, or get covered by, a lawyer. There are also many changes in elder law, especially Ohio’s Medicaid program, that happen quickly which make it difficult for me to keep you up to date with my email newsletter or seminars. That’s why I’ve started this blog.

Over time, I have no doubt that the topics will evolve, and that we’ll meander a little bit. Occasionally, I’m sure there will be some difficult discussions; but I hope that equally there will be some light-hearted ones. And regardless of the nature or tone of the topics, I’m looking for input from you, my dear readers. So, if there’s something you have a question about, something you’d like to know more about, or simply something you’d like to share, please don’t hesitate to reach out and let me know.

In the meantime, I’m going to get rolling and start writing about things like caring for aging parents, role reversal, supporting siblings with elderly parents, Ohio’s Medicaid program, revocable living trusts, powers of attorney, retirement communities, home-care, elder care and any other topic I can think of that might be useful to you.

Hopefully you enjoy what you find here, learn some things, and join the conversation.

Once again, welcome to my blog.

Michael  J.  Millonig
Certified as an Elder Law Attorney
by the National Elder Law Foundation since 1998
OSBA Board Certified Estate Planning
Trust and Probate Specialist
937-438-3977

Any legal information communicated in this blog is a general statement of the law.  It is not intended as legal advice and should not be relied upon to answer any specific questions concerning your own circumstances or for purposes of legal planning. These communications are not intended to create an attorney-client relationship. Please contact my office for an appointment if you have any legal questions.

Medicare coverage for nursing homes

The Medicare standard for coverage of skilled care in a nursing facility has long been understood to continue only until the patient is no longer improving. Usually, this is about 20 to 100 days maximum. At that point in time, Medicare a coverage ceases. However, the case of Jimmo v Sebelius decided that this improvement standard was not a correct interpretation of the law. That case was concluded in 2013 with CMS following up with regulatory changes in 2014. Yet we still see determinations using the improvement standard when patients should be getting continuing Medicare coverage in some situations. For more information see
http://www.medicareadvocacy.org/new-fact-sheet-skilled-nursing-facility-coverage-and-jimmo-v-sebelius/

New Brokerage Account Safeguards Aim to Protect Seniors From Financial Scams

New rules have been put in place to protect seniors with brokerage accounts from financial scams that could drain the accounts before anyone notices.

As the population ages, elder financial abuse is a mounting problem. Vulnerable seniors can become victims of scammers who convince them to empty their investment accounts. According to the Financial Industry Regulatory Authority (FINRA), the organization that regulates firms and professionals selling securities in the United States, its Securities Helpline for Seniors has received more than 12,000 calls and recovered more than $5.3 million for seniors whose investment funds were illegally or inappropriately distributed since the helpline opened in April 2015.

Now, FINRA has issued two new rules designed to help investment brokers or advisors better protect seniors’ accounts from financial exploitation. The rules, which went into effect in February 2018, apply when opening a brokerage account or updating information for an existing account.

First, the broker or investment advisor must ask the investor for the name of a trusted contact person. This is someone the broker can contact if there are questions about the account. The trusted contact is intended to be a resource for the broker to address possible financial exploitation and to obtain the customer’s current contact information and health status or learn about any legal guardian, executor, trustee or holder of a power of attorney.

The second rule allows a broker to place a temporary hold on disbursements from an account if those disbursements seem suspicious. This rule applies to accounts belonging to investors age 65 and older or investors with mental or physical impairments that the broker reasonably believes make it difficult for the investor to protect his or her own financial interests. Before disbursing the funds, the brokerage firm will be able to investigate the disbursement by reaching out to the investor, the trusted contact, or law enforcement.

Prior to the new rules, issues of privacy prevented a broker from contacting family members when suspicious activity was detected, and under previous FINRA rules brokerage firms risked liability for halting suspicious transactions.

To read more about the new rules, click here.

For Frequently Asked Questions about the new rules, click here.

Be on the Lookout for New Medicare Cards (and New Card-Related Scams)

The federal government is issuing new Medicare cards to all Medicare beneficiaries. To prevent fraud and fight identity theft, the new cards will no longer have beneficiaries’ Social Security numbers on them.

The Centers for Medicare and Medicaid Services (CMS) is replacing each beneficiary’s Social Security number with a unique identification number, called a Medicare Beneficiary Identifier (MBI). Each MBI will consist of a combination of 11 randomly generated numbers and upper case letters. The characters are “non-intelligent,” which means they don’t have any hidden or special meaning. The MBI is confidential like the Social Security number and should be kept similarly private.

The CMS will begin mailing the cards in April 2018 in phases based on the state the beneficiary lives in. The new cards should be completely distributed by April 2019. If your mailing address is not up to date, call 800-772-1213, visit www.ssa.gov, or go to a local Social Security office to update it.

The changeover is attracting scammers who are using the introduction of the new cards as a fresh opportunity to separate Medicare beneficiaries from their money. According to Kaiser Health News, the scams to look out for include phone calls with callers:

  • claiming to be from Medicare looking for your direct deposit number and using the new cards as an excuse,
  • asking for your Social Security number to verify information,
  • claiming Medicare recipients need to pay money to receive a temporary card, or
  • threatening to cancel your insurance if you don’t give out your card number.

There is no cost for the new cards. It is important to know that Medicare will never call, email or visit you unless you ask them to, nor will they ask you for money or for your Medicare number. If you receive any calls that seem suspicious, don’t give out any personal information and hang up. You should call 1-800-MEDICARE to report the activity or you can contact your local Senior Medicare Patrol (SMP). To contact your SMP, call 877-808-2468 or visit www.smpresource.org.

For more information about the new cards, click here and here.

Alzheimers: facts & figures

A new report from the Alzheimer’s Association has some very interesting information and statistics. There are now an estimated 5.7 million Americans living with Alzheimer’s dementia. This number is expected to reach 7.1 million by the year 2025. Two thirds of the Americans over age 65 with Alzheimer’s dementia are women. The total national cost of caring for persons with Alzheimer’s and other dementias is estimated at 277 billion in 2018. In 2017, the lifetime cost of care for a person living with dementia was $341,840. Seventy percent of this cost was paid for by families through out-of-pocket costs and the value of unpaid caregivers. For the full report, go to
https://digitalmedia.vnr1.com/2018/03/19/alzheimer_2018_report/

World’s Oldest Person

I saw in the news that the world’s oldest person just passed away at the age of 117. https://www.cbsnews.com/news/nabi-tajima-dead-worlds-oldest-person-117/ I am always amazed to hear the stories of people who live this long. They have lived through monumental changes in our society. Whatever lessons they have learned through their long life would certainly be worth hearing. Some of these stories are collected in a book called: Earth’s Elders: The Wisdom of the World’s Oldest People, Jerry Friedman.

Who has the right to decide on funeral and burial?

The fundamental purpose behind estate planning is to ensure that a person’s wishes are carried out and to avoid expensive legal disputes. Planning for funeral arrangements and burial or cremation is often ignored by estate planners. This is perhaps due to the fact that there have been changes in most states in recent years in the law regarding such planning. Most states have enacted a specific statute that allows for a legal document setting forth the persons wishes for funeral and burial. https://funerals.org/?consumers=legal-right-make-decisions-funeral Prior to these statutes, the law in most states was that the next of kin of the deceased person had the right to decide these arrangements. For more information on Ohio law, see http://www.michaelmillonig.com/practice-areas/funerals-burial/

A recent news story concerning the infamous Charles Manson’s estate reported that there was a legal dispute concerning the disposition of his body. https://www.npr.org/sections/thetwo-way/2018/03/13/593121657/charles-manson-grandson-wins-legal-battle-over-cult-leaders-body It was ultimately decided by the court that of the three people vying for this right that his grandson was the surviving adult next of kin entitled to this right. The grandson’s attorney indicated that the plan was to have the body cremated and then scattered over a body of water.

Long-Term Care Insurance Policyholder Wins Suit Against Company for Hiking Premiums

A long-term care policyholder has successfully sued her insurance company for breach of contract after the company raised her premiums.

At age 56, Margery Newman bought a long-term care insurance policy from Metropolitan Life Insurance Company. She chose an option called “Reduced-Pay at 65” in which she paid higher premiums until she reached age 65, when the premium would drop to half the original amount. The long-term care insurance contract set out the terms of the reduced-pay option. It also stated that the company could increase premiums on policyholders in the same “class.” When Ms. Newman was 67 years old, the company notified her that it was doubling her premium.

Ms. Newman sued MetLife for breach of contract and fraudulent and deceptive business practices, among other things. In its defense, the company argued that the increase was imposed on a class-wide basis and applied to all long-term care policyholders over the age of 65, including reduced-pay policyholders. A federal district court dismissed Ms. Newman’s suit, ruling that the contract permitted MetLife to raise her premium. Ms. Newman appealed.

The U.S. Court of Appeals for the Seventh Circuit reversed the lower court's decision and held that MetLife breached its contract when it raised Ms. Newman's premium (Newman v. Metropolitan Life Insurance Company, U.S. Ct. App., 7th Cir., No. 17-1844, Feb. 6, 2018). According to the court, reasonable people would believe that signing up for the reduced-pay option meant that they were not at risk of having their premiums increased. The court also allowed Ms. Newman's fraudulent and deceptive business practices claim to proceed, ruling that she showed evidence that the company's marketing of the policy was deceptive and unfair.

To read the court's decision, click here.

Estate Planning for a Cryonics Patient

I have read some information recently from other attorneys on the Internet discussing trust and estate planning for persons intending to undergo cryopreservation. They tend to use terms such as personal revival trust, patient care trust and cryonic suspension trust etc. I prefer Cryonics Dynasty Trust. There are different names for certain types of trusts used in estate planning. However it is important to understand that all trusts do not neatly fit into a pigeonhole under a certain nomenclature. The trust should always be drafted for the individual circumstances and intentions of each client. The name given to the trust is not as important as its content.

Lawyers like to focus on trusts because they are usually the centerpiece of most advanced estate planning. However, the most important thing for the cryopreserved patient is to have legally enforceable documents to ensure that their intentions for cryopreservation are carried into effect after their legal death. For more information on this please refer to my website. http://www.michaelmillonig.com/practice-areas/cryonics/

The issue of trust beneficiaries is often discussed by other attorneys. That is an important trust drafting issue given the atypical situation that the cryonics patient is legally dead and cannot be a beneficiary while in cryopreservation . However the first concern should be with other beneficiaries who might not be happy that they’re not receiving a full inheritance. These persons could file a court action to have the trust set aside and all the money distributed to them. For this reason, it is important to make some provision for a person’s next of kin giving them some amount of an inheritance. They would be required to accept this amount only if they signed a full release and waiver preventing any lawsuit to set aside the trust. There are other legal methods to prevent a will contest and trust litigation but that is all I can cover in a short blog.

Medicaid Work Requirement – Ohio Medicaid

A new development for state Medicaid programs is that the states are now allowed to require Medicaid recipients to work, take job training or do community service in order to maintain their eligibility. Some states have already implemented this change. Ohio has made no indication yet that it intends to enact a work requirement. If this work requirement is enacted, will this mean that older adults in a nursing home or younger persons with disabilities will be required to work? It appears that there is an exception for older Medicaid recipients, children under age 19 and pregnant women from this work requirement. However the details of how this will be determined in the Medicaid process are uncertain. This is something we will need to keep an eye on if the state of Ohio attempts to enact this work requirement.

A Guidebook to Planning for Old Age

Joy Loverde. Who Will Take Care of Me When I’m Old? Plan Now to Safeguard Your Health and Happiness in Old Age. New York, NY: Da Capo Press, 2017. 313 pages. Click here to order book via IndieBound.org

Millions of Americans are facing old age essentially alone.  One in three baby boomers is single or no longer part of a couple due to divorce or death.  Others may be in a relationship where chronic illness has struck both partners simultaneously. Children may live too far away or lack the resources to offer a parent meaningful help.

But there is no reason why circumstances like these should bar anyone from a quality old age.  It just takes planning, which is where this empowering book comes in. Full of helpful checklists and worksheets, Who Will Take Care of Me When I’m Old? is an essential guide to preparing for and navigating the inevitable losses that aging entails – the loss of functioning, the loss of loved ones and friends, and the loss of income.

Joy Loverde, a consultant and speaker on aging issues and the author of The Complete Eldercare Planner, has written a self-help book that offers both emotional and practical advice.  The first chapters address overcoming the psychological barriers to planning.  After all, the prospect of growing old and needing care is something most people would prefer not to think about, much less plan for.  One early section suggests ways to avoid self-sabotaging thoughts.  Other section headings include “Lessen the Grip of Guilt” and “Motivate Yourself.”

The book then turns to the planning work at hand.  An early chapter deals with how to stay afloat financially.  Near the top of the list are getting one’s legal affairs in order, including consulting with an elder law attorney.  Loverde suggests ways to create an income stream in retirement and lists scores of job possibilities.  She even has recommendations for lowering grocery bills.

Succeeding chapters present ideas and resources for successfully aging in place alone, exploring housing options both in the U.S. and abroad, coping with widowhood, “foraging for a family,” staying connected with those you know and making new friends, and evaluating medical providers.  One chapter is devoted to considerations in adopting a pet.

The final chapters deal with strategies for coping when old age becomes seriously challenging.  Loverde covers “the game changer” of chronic illness, including how to effectively advocate for yourself or find a professional to advocate for you.   A chapter titled “‘Just Shoot Me’ Is Not a Plan” maps strategies for ensuring quality care at the end of life.  There is even a list of resources for those considering “suicide tourism.”

Throughout the book, Loverde provides names of helpful organizations, and one fun feature is that each chapter ends with one recommended book, YouTube video, movie, song and TED Talk on that chapter’s topic.  Near the end Loverde includes a multi-page goldmine of useful websites (ElderLawAnswers among them).

This is not the kind of book anyone looks forward to reading, but it is a book that is essential reading for anyone who wants to start laying the groundwork now for the best possible old age.

To read more about Who Will Take Care of Me When I’m Old?, click here.