Boston Estate Planning and Probate Lawyer & Attorney : Gosselin & Associates Law Firm : Serving Boston, Winchester, Hingham, Wellesley, Manchester

(From The Boston Globe) The cost of nursing-home care has risen 17 percent across the country over the past five years, a new survey shows. While the rate of increase was slightly lower in Massachusetts at 16 percent and even lower in Boston at 10 percent, the cost of care in Massachusetts was still well above the national average. One year in a nursing home private room costs $109,396 in Boston and $106,321 in other parts of Massachusetts. That compares to the national average of $76,460, according to the Cost of Care Survey conducted by Genworth Financial, a company based in Richmond, Va., that sells long-term care insurance. Alaska has the most expensive care, at $187,902, followed by New York City at $145,392. Connecticut is also more expensive than Massachusetts, at $119,678. The annual survey of long-term care also looked at the cost of assisted living, hourly home care, and adult day health care. In Boston a one-bedroom unit in an assisted-living facility cost $54,052 per year, in the rest of the state it cost $46,440, and an average of $36,090 in the rest of the country. Alaska again topped the list, at $54,809. The hourly rate for a home health aide was $23.40 in Boston, $22.41 outside Boston, and averaged $19.18 across the country. Adult day health care is a spot of moderation in Massachusetts. Five days a week cost $15,337 a year in Boston, $14,009 in the rest of Massachusetts, and an average of $15,236 nationally.

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It occurred to me as an Elder Law lawyer that I am really a lawyer that handles the concerns of life and death generally.  My occupation is literally about life and death situations everyday.  It is how we came upon our new banner of Law for Life.  But as I reflect on what it means to hold such a responsible and important role I am struck by the spectrum that life is, from the smallest twinkle in an expectant mother's eye to an aged man gasping for his last ethereal breath.  In the spirit of being a steward of the very continuum that makes us human, I offer this powerful poem by Robert Frost that to me embodies grief, love, compassion, Men are from Mars and Women are from Venus, and Yankee reserve.  Those that know me know I am a big fan of late 19th and early 20th century literature.

Robert Frost (1874–1963). North of Boston. 1915.

Home Burial

HE saw her from the bottom of the stairs
Before she saw him. She was starting down,
Looking back over her shoulder at some fear.
She took a doubtful step and then undid it
To raise herself and look again. He spoke 5
Advancing toward her: “What is it you see
From up there always—for I want to know.”
She turned and sank upon her skirts at that,
And her face changed from terrified to dull.
He said to gain time: “What is it you see,” 10
Mounting until she cowered under him.
“I will find out now—you must tell me, dear.”
She, in her place, refused him any help
With the least stiffening of her neck and silence.
She let him look, sure that he wouldn’t see, 15
Blind creature; and a while he didn’t see.
But at last he murmured, “Oh,” and again, “Oh.”

“What is it—what?” she said.

“Just that I see.”

“You don’t,” she challenged. “Tell me what it is.” 20

“The wonder is I didn’t see at once.
I never noticed it from here before.
I must be wonted to it—that’s the reason.
The little graveyard where my people are!
So small the window frames the whole of it. 25
Not so much larger than a bedroom, is it?
There are three stones of slate and one of marble,
Broad-shouldered little slabs there in the sunlight
On the sidehill. We haven’t to mind those.
But I understand: it is not the stones, 30
But the child’s mound——”

“Don’t, don’t, don’t, don’t,” she cried.

She withdrew shrinking from beneath his arm
That rested on the banister, and slid downstairs;
And turned on him with such a daunting look, 35
He said twice over before he knew himself:
“Can’t a man speak of his own child he’s lost?”

“Not you! Oh, where’s my hat? Oh, I don’t need it!
I must get out of here. I must get air.
I don’t know rightly whether any man can.” 40

“Amy! Don’t go to someone else this time.
Listen to me. I won’t come down the stairs.”
He sat and fixed his chin between his fists.
“There’s something I should like to ask you, dear.”

“You don’t know how to ask it.” 45

“Help me, then.”
Her fingers moved the latch for all reply.

“My words are nearly always an offence.
I don’t know how to speak of anything
So as to please you. But I might be taught 50
I should suppose. I can’t say I see how.
A man must partly give up being a man
With women-folk. We could have some arrangement
By which I’d bind myself to keep hands off
Anything special you’re a-mind to name. 55
Though I don’t like such things ’twixt those that love.
Two that don’t love can’t live together without them.
But two that do can’t live together with them.”
She moved the latch a little. “Don’t—don’t go.
Don’t carry it to someone else this time. 60
Tell me about it if it’s something human.
Let me into your grief. I’m not so much
Unlike other folks as your standing there
Apart would make me out. Give me my chance.
I do think, though, you overdo it a little. 65
What was it brought you up to think it the thing
To take your mother-loss of a first child
So inconsolably—in the face of love.
You’d think his memory might be satisfied——”

“There you go sneering now!” 70

“I’m not, I’m not!
You make me angry. I’ll come down to you.
God, what a woman! And it’s come to this,
A man can’t speak of his own child that’s dead.”

“You can’t because you don’t know how. 75
If you had any feelings, you that dug
With your own hand—how could you?—his little grave;
I saw you from that very window there,
Making the gravel leap and leap in air,
Leap up, like that, like that, and land so lightly 80
And roll back down the mound beside the hole.
I thought, Who is that man? I didn’t know you.
And I crept down the stairs and up the stairs
To look again, and still your spade kept lifting.
Then you came in. I heard your rumbling voice 85
Out in the kitchen, and I don’t know why,
But I went near to see with my own eyes.
You could sit there with the stains on your shoes
Of the fresh earth from your own baby’s grave
And talk about your everyday concerns. 90
You had stood the spade up against the wall
Outside there in the entry, for I saw it.”

“I shall laugh the worst laugh I ever laughed.
I’m cursed. God, if I don’t believe I’m cursed.”

“I can repeat the very words you were saying. 95
‘Three foggy mornings and one rainy day
Will rot the best birch fence a man can build.’
Think of it, talk like that at such a time!
What had how long it takes a birch to rot
To do with what was in the darkened parlour. 100
You couldn’t care! The nearest friends can go
With anyone to death, comes so far short
They might as well not try to go at all.
No, from the time when one is sick to death,
One is alone, and he dies more alone. 105
Friends make pretence of following to the grave,
But before one is in it, their minds are turned
And making the best of their way back to life
And living people, and things they understand.
But the world’s evil. I won’t have grief so 110
If I can change it. Oh, I won’t, I won’t!”

“There, you have said it all and you feel better.
You won’t go now. You’re crying. Close the door.
The heart’s gone out of it: why keep it up.
Amy! There’s someone coming down the road!” 115

“You—oh, you think the talk is all. I must go—
Somewhere out of this house. How can I make you——”

“If—you—do!” She was opening the door wider.
Where do you mean to go? First tell me that.
I’ll follow and bring you back by force. I will!—”

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The call came like all the others, a middle aged woman looking for help in navigating the maze of rules and regulations between bringing her father from his home of many years to what he always called "the waiting room", waiting to die of course.

She explained that she and dad had been together for 43 years since her mother died in a car accident when she was just 8. Dad's spirit was so crushed that his only daughter could not consider another choice - she needed to dedicate her life to caring for her depressed father. He did work, had saved some money, paid for the house, but not much was left after paying for nurse's aides, hospital beds and special medications. The only real monetary value was in the house which had a reverse mortgage put on years ago that has eaten away the home's equity along with a rapidly declining market. The house was ordinary with yellowed walls from the years of dad's smoking two packs of cigarettes a day.

In virtually all cases we are able to establish a Medicaid asset protection plan to conserve assets for the family - and not the nursing home. But here it was quite different. You see, the daughter was terminally ill with lung cancer and COPD, despite never putting a cigarette to her lips, but her devotion to her heavy smoking father came not only with the obvious prices of missed career, romance and a family of her own, but her very health. Dad was still in reasonably good health, driving to his Knights of Colombus meetings, taking in a Red Sox game at Fenway with a close friend from time to time, even driving to Mohegan Sun and Foxwoods from time to time to let it ride.

Since the daughter can no longer care for her father's daily needs (and he has been so conditioned to be waited on hand and foot so as to be completely incapable of doing household tasks for himself), she asked me to place him in a nursing home for the rest of his life since she herself needed nursing and hospice care. As I explained on the telephone that while nursing homes can accept anyone for residency and that MassHeath (the Massachusetts Medicaid service) can provide a myriad of taxpayer paid services, her father would not be eligible because he was not sick or even incapable of caring for himself, that unless they were to private pay, there would no way for him to be admitted to a nursing home.

The quietest moment of my legal career ensued.

The point here is that Medicaid qualification requires both financial qualification, which we hear about all the time, but also medical qualification. The state has in recent months not approved long term medical qualifications, but rather limited 90 day approvals are showing up more and more often. The consequence is ongoing reviews of patients who are clearly qualified for long term care - a true waste of already limited resources. The moral of this story and similar situations is to review potential calamity before things become a crisis. The crisis in this client's situation will result in the use of all the home equity to provide in-home services and a diligent search by A Place for Mom to find an appropriate PACE Assisted Living Placement with and Aid and Attendance Veteran's benefit. Law for Life is singularly focused on the needs of elders and their families in identifying and obtaining the most cost effective and financially conservative course of action possible.

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Reverse mortgages are bad mortgage products. Reverse mortgages cost too much in closing costs. Reverse mortgages drain the equity from elders' estates. Reverse mortgage originators prey on the weakest among us. Or so pundits that sell houses, annuities and all manner of ignorant self interested "protectors" of the elderly repeat as if a mantra to ward off the evil of reverse mortgages. Of course, the truth could not be further from their fears.

The US Government needs the baby boomers to embrace reverse mortgages. After all, the national debt has more numbers than my Comcast account, Halliburton needs to keep profitable in Iraq and Americans are living (and getting Social Security and Medicaid benefits) longer than ever. The actuaries tell us that it's not the interest on the national debt, foreign aid or war that will bankrupt the US Government, but rather Medicaid has the power to overwhelm the entire GDP. Where is the money that will pay for all of Uncle Sam' hospital bills?

Medicaid is an issue for the reverse mortgage industry, especially for the reverse mortgage originators that don't know their products and underwriting well enough to advise their customers on the traps. I have been featured recently in the Mortgage Press and the National Reverse Mortgage Lenders Association national teleconference and newsletters as an expert in the intersection of Medicaid regulations and the origination of reverse mortgages.

Here is one of the articles, excerpts from an interview with Atare Agbamu (who writes extensively on reverse mortgage issues):

Traps for the Wary: Reverse Mortgages and Healthcare Benefits -- a conversation with Elder Law Attorney John Gosselin

By Atare E. Agbamu, CRMS

They say old age hardly comes alone. It comes with issues. The same can be said of reverse mortgages, the new pillars of retirement security in these precarious times.

Reverse mortgages come with issues, government healthcare benefits issues. The relationship with government healthcare benefits is deeper and more challenging than most originators and customers suspect.

To help us understand the connection and its implications for originators and customers, I spoke with Winchester, Massachusetts-based elder law attorney John T. Gosselin.

The Managing Attorney of his own law firm, Gosselin & Associates, P C, with offices in Massachusetts and New Hampshire, Mr. Gosselin is one of a few lawyers, in my experience, who really understand reverse mortgages, particularly how they mix with other elder law issues.

Besides overseeing a vibrant probate administration and elder law work, Mr. Gosselin runs a thriving real estate practice, acting as counsel or closing agent in more than 20,000 transactions, advising clients on purchase and sale agreements, mortgages, financial, and title disputes.

A member of the National Reverse Mortgage Lenders Association (NRMLA), Mr. Gosselin has advised and represented lenders in reverse mortgage situations for more than 10 years.

As you will find from our conversation, Mr. Gosselin has thought these issues through. His knowledge, insights, and suggestions will help you serve your customers better. They could help your company avoid some difficult issues too. [Disclaimer: Nothing in this article should be considered legal advice. Seek competent counsel for your unique situation.] The following is a transcript of our conversation.

Atare E. Agbamu: John, what is the loss of Medicaid Eligibility risk for the typical reverse mortgage borrower?

John T. Gosselin: The big risk is being over asset. The way you qualify for Medicaid benefits is to be poor. Medicaid is welfare. So in order to qualify for welfare, you need to be poor. And the government defines poor as a combination of assets and resources. And they define it all as available resources. That's the term that is used. If you have more available resources than the limits that are allowed by law, you cannot qualify for benefits.

The first risk is a borrower holds too much cash in their name, by virtue of holding too much cash, either through a lump-sum distribution from a reverse mortgage or drawing too much down from a HECM [government-insured reverse mortgage] or drawing a small amount from a HECM but not spending it. A lot of our borrowers in the reverse world are used to living on very low amounts of money. So when they start drawing from a HECM, they feel uncomfortable spending it. I have seen that happen where the borrower accumulates relatively modest payments over a short period of time to put them over the asset limits.

The asset limit, commonly, for an individual person, is about $2,000 in liquid resources, in addition to their principal residence. They are allowed to have a principal residence, but they can't have more than $2,000 in total liquid assets at the end of any month. So at the end of any month, they can't have more than $2,000 standing in their name and receive Medicaid benefits.

So the risk is that they are going to draw down or borrow more than what is allowed. By doing that, if they are over age 65, as almost all our reverse borrowers would be, it will automatically put them in situations where they are either going to be disqualified for benefits and/or subject to reimbursement for benefits they have already received. That is the risk specific to Medicaid.

There is another risk which is also related, Supplemental Security Income (SSI), which is an additional welfare program. It is intended mainly for people who are very poor, who have neither Social Security nor virtually any social security income. This is another scheme which the federal government provides for its poorest people. Generally, these are people who never paid into the system by working at jobs which provide for federal social security and insurance benefits. It is not an insurance program; it is a federal welfare benefit. And that program has very strict income guidelines.

Although a HECM advance doesn't disqualify them as income, there is a risk of going over the asset limits. There is income that is assumed to come from those assets. There is a formula that is done. If they are holding too much in assets, they can be disqualified from SSI. Again, holding too much cash is a problem. Having money in a given month is not a problem. They could draw down tens of thousands of dollars if they spend it for their own personal needs, their care, and their protection. They can really spend it for anything. They are spending an asset that is protected, which is their house. At the end of 30 days, they better get that asset back under $2,000. At the end of each month, their cash has got to be under $2,000. And they could not have accumulated other easily liquidated assets, like buying jewelry, for example. They can't buy more than one motor vehicle for their own use. They can't accumulate collectible assets. They can't go out and buy antique furniture that is going to carry a cash value or easily liquidated value. So they are somewhat restricted in how they use their funds, but not terribly.

One other dimension that people should be aware of (I don't expect this to occur often) is that the tenure payment could be construed as income. We usually say that reverse mortgage payouts are never income, that it is always drawing against the value of the house, but the reality is that when the balance of the mortgage exceeds the value of the collateral, it can be recognized as income; because, effectively, it is no longer a loan because the proceeds are exceeding the value of the collateral. The IRS would recognize that as a form of taxable annuity income. That could run into some problems.

Now why I say it shouldn't come up much is that the tenure payment is fairly conservative. The formula used to come up with the numbers really anticipate someone living quite some time before the loan gets upside down; but, in a declining real estate market, you could, potentially, see that become an issue in the future.

AA: From your experience, how valuable is Medicaid Eligibility to the average senior person? For it to be a serious loss, it has got to be pretty valuable.

JG: For the average senior, they are probably going to be receiving Medicare benefits because that is an insurance program that people pay in when they work, and they work for wages. The vast majority of people over 65 are on Medicare benefits.

The Medicaid benefits we are talking about will affect reverse mortgages. It could be supporting a spouse that is in a nursing home. For example, if we have a wife that is in the community and a husband in a nursing home, the wife in the community (it varies by state) on average, is allowed to keep the principal residence and approximately $100,000 in assets. It does vary. More or less, it is $100,000. If she goes over the asset limit, she can disqualify her spouse for the benefits that they are receiving for the husband's care and possibly be forced to reimburse benefits already received.

Most often, I think, when a spouse of someone who is borrowing on a reverse is in a facility [nursing home], they are disqualifying the spouse often unknowingly. This is one of the traps for originators. They should inquire whether or not a spouse is in a nursing facility and determine how that spouse is paying for their care. Sometimes the spouse will no longer be on title so the topic does not come up unless a direct inquiry is made.

There are other ways to pay for nursing care. One of them could be VA [Veteran Administration]. The VA is very low cost, and it doesn't really impact reverses as it is tied to service record and not only financial need. There are also religious and community organizations that provide unique living situations for elders, many of these require turning over large lump sums in favor of lifetime care contracts. Home care services are also coming along that will essentially enable seniors to have nursing care at home on a somewhat more affordable basis. Another place Medicaid comes in is community Medicaid.

Community Medicaid is a program that supplements Medicare. Again, it is generally for the poorest people, both seniors and those under 65. The people whose income and ability to pay for what Medicare doesn't pay for is compromised, so they would go for Medicaid benefits in the community, or they need some special services or in-home care through a variety of community programs.

There are in-home care programs that are coming up every day now in every state, where instead of going to a nursing home, the state will subsidize a certain amount of in-home care. It is that in-home care we need to be concerned with because if it is under the Medicaid program, it is subject to reimbursement. Think of Medicaid like a loan from the government.

AA: So this is a very valuable program for the average senior because it protects their health, right?

JG: The Medicaid program we are talking about is a community health insurance benefit. This pays for every aspect of medical care. It pays for prescriptions. It pays for hospitalization. It pays for virtually any medical need of an elderly person. You could have reimbursement obligations in the millions of dollars for somebody who has a serious illness.

You could have someone who has MS [multiple sclerosis], Lou Gehrig's disease, or a form of cancer that has received hundreds of thousands or even millions of dollars worth of care through the Medicaid system. Yes, it is absolutely a valuable benefit.

To lose the benefit for people who are receiving the benefit would probably be catastrophic. They could put themselves in situations where their medical debt could consume the value of their house. If they have no other means of paying for their medical debt, they could be forced into bankruptcy for their medical debt.

The US government needs to find a way to use the wealth stored in home equity for people's care, I think we'll see a much simpler reverse mortgage product coming very soon, like a low interest rate reverse mortgage that's sold directly or at least wholly subsidized by the US Government to get at people's home equity for elders' medical and home care needs.

 

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The Law for Life blog has had many new readers lately. While we welcome them all, the sad fact is many are desperately searching for help because they have received notice of foreclosure proceedings against them.

They are frequently in difficulty due to increased mortgage payments caused by rising interest on adjustable rate loans (ARM). These increased mortgage payments are forcing many toward foreclosure and what is known as a "short sale." It is called a short sale, because the money from the sale of the home, is short of what is owed. It is a no-win situation for both borrower and lender. We can help.

Frequently, borrowers panic when they get that first foreclosure notice, instead of either calling the lender on their own to ask for more time or for help, or by consulting an attorney experienced in this area of law. We have helped many homeowners in exactly these kinds of situations and we may be able to help you. There is no charge for finding out.

The lenders do not want to foreclose on you any more than you want to be forced out of your home. Often there is room for negotiation that will involve compromise on the part of both sides. That's exactly where our skilled and experienced staff can help most. But start early, do not delay.

The worst thing a homeowner who gets the initial notice of foreclosure can do, is fail to communicate with the lender. Yet, many homeowners simply panic, hide, clam up or do nothing when the foreclosure notice arrives.

If you feel you can no longer support the payment on your mortgage and you are in danger of losing your home, we are available to discuss your situation and to help you find out what your options are. Often we can intervene on your behalf and negotiate settlements with lenders. In many cases our fees are included in the lender's expenses.

We recognize the stress and pain that comes from foreclosure. Our staff is experienced in handling these problems for clients. Often, just knowing exactly what the procedures are and the timetable for what will happen next are an enormous source of comfort. It is the unknown that is so scary. Please read our guide on short sales above.

Call 781-782-6000 or 877-325-6746 to speak with one of our experienced Massachusetts short sale lawyers.

 

 

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Law for Life is officially the new street name of Gosselin & Associates, P.C. and Gosselin Law, our brand, if you like. Our completely renovated website at www.lawforlife.com has been carefully planned to be the easest and most thorough site on elder law matters in cyberspace. Please let me know how you enjoy the new site!

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I make my Easter turkey a couple of different ways, sometimes, I'll even make two or three smaller birds in different styles. My favorite method for preparing turkey is really the most simple. First, choose a fresh 10-12lb whole turkey, clean it thoroughly. Preheat a three burner gas grill to maximum temperature with a handful of hickory chips wrapped in aluminum foil, (I use a Vermont Castings that I got at Home Depot for this part ).

Mix chopped carrots, celery, onion, fresh sage, fresh ground pepper, a crushed and chopped lemon, a couple cloves of garlic and five tablespoons of sea salt (seriously) together and stuff it into the turkey cavity. Generously slather sea salt, ground pepper, fresh sage and lemon juice all over the skin. Here's the trick. Now, turn the middle burner to the off position and the front and back burners to the lowest possible setting. Place the turkey breast up, close the grill and wait. Whatever you do, don't check on the turkey. Just come back in 2.5 hours. Do not open the lid. Do not open the lid. Do not open the lid. I know you will, so close it quickly - the secret is uninterrupted convection. Don't eat the vegetables inside, just discard them prior to serving.

 

There are two holidays in my estate planning world - Easter and Leap Year Day. Huh? Easter is a holiday based around families coming together to share a meal and in the "Leave it to Beaver" world to think about the good things in life that come from being a family and the re-birth that the season inspires. Since we had Leap Year Day, there is no Easter on my perpetual calendar this year.

Of course, Easter today is as much about Easter baskets, and after Easter sales at the Burlington Mall. Leap Year Day is a big holiday on my perpetual calendar.

LYD (what us insiders call it) is a day every four years that you should take your estate plan and read it. And as you get older, I'd celebrate the last day of February more often. For older clients, I suggest reviewing your estate plan each year at Easter time. So, every four years until you stop buying green bananas!

Death. Money. Who gets the china? I think these are wonderful topics for your Easter Feast. What better time than when you have the whole family together to discuss your estate plan? If you want to review your intended resurrection, I'm all for it - tell your family that you will haunt them. I am a great proponent of talking to your family about your financial affairs and your intent - albeit homogenized for the audience. You may not want your in-laws to be in the room, no problem, give them a Monopoly box and put them in the den. Easter is a good day for board games. Did you ever think that Milton Bradley has a Monopoly on Monopoly?

Be direct with your children. In my experience as an elder law lawyer in Massachusetts, I have learned that frankness wins the day. You can reduce your child's anxiety by giving them straight answers and your clear intent. If you intend to create trusts for your children - tell them so. And don't let your spendthrift child talk you out of protecting him from himself. If need be, call your estate planning lawyer (my cell phone will be on on Easter for just such emergencies) to take the heat. As for health care issues there is nothing better than expressing your wishes to your family. After all, they will be the ones to make decisions about your care when you are no longer able.

It's a time to give thanks for the good things in our lives and to discuss what will happen after our deaths. It's what Jesus would do.

Happy Easter and God Bless.

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