Pause Before You Sign that Nursing Home Contract

 

Suppose your mother can no longer make decisions for herself and she now needs nursing-home care. You are stressed and anxious. The nursing home puts a twenty-page, single-spaced contract in front of you. You wish you could flip straight to the last page and sign then and there, just to get it over with.

Do not do this. You could be agreeing to pay, out of your own pocket, many thousands of dollars for your mother’s care.

Try to get your mother admitted and then, before you sign the contract, bring it to us for our review and guidance. Once your mother has moved in, she can’t be evicted just because you want to negotiate the contract.

But if that is not feasible, then sit down and take a few deep breaths. Read the contract carefully. Make a list of questions and ask a facility representative to explain. Ideally, that person would sit with you as you go through the document. Don’t sign until you understand.

Here is what to watch out for.

You should not use your own money to pay

* Do not sign the contract if it requires you to obligate yourself to pay with your own money. Carefully scrutinize any language referring to you as the “responsible party” or “resident representative” or “agent.”  

The suspect buzz-words are “co-signor,” “guarantor,” “personally guarantee,” “personally liable,” “private-pay guarantor,” “surety,” “individual capacity,” or any such language. Words like these obligate you, personally, to pay if your mother doesn’t have the money. Don’t sign even if there are no buzz-words, but the language looks something like this: “If the resident does not or cannot pay, I will pay the amount owed for residency charges, services, equipment, supplies, medication, and other charges.”

Please understand that it is legal for the facility to require you, if you hold financial power of attorney or are guardian, to pay nursing-home bills from your mother’s money and assets. It is legal to require you to spend her money on her care and not for any other purpose. It is not legal to condition your mother’s admission on your agreeing to pay her bills with your own money, which is what the above buzz-words mean in plain English. The nursing home can ask you to agree – and if they ask, refuse – but you cannot be forced to agree to pay with your own money.

If your mother lacks the money, the next step is to apply for Medicaid assistance, not to go digging into your pocket.

Sometimes the contract is confusing. For instance, one nursing-home agreement says that the representative “personally guarantees continuity of payment.” This alarming language is properly followed by an italicized statement that the representative is “not required to pay for Resident’s care from his/her own personal funds.” The agreement proceeds, though, to use the phrase “personally guarantee” in other contexts. Ambiguity like this is why we recommend that you first bring the agreement to us. We can ensure, on your behalf, that the facility clarifies such language and does not misapply it.

Everyone in need has the right to apply for Medicaid

*           The nursing-home contract must not require your mother to waive – give up – her right to seek government assistance like Medicare or Medicaid, nor can it ask her or you to sign any statement that she is ineligible for those benefits.

*           If your mother has no money to pay for care, a Medicaid application will be required. The contract may seek your permission to apply for Medicaid for you. You have the right to decline that option and, instead, seek legal counsel to help you apply. We have seen some facilities mishandle Medicaid applications, which wound up being denied when they should not have been.

In any case, though, whoever files for Medicaid, you must cooperate by immediately providing all records necessary for that application.

If your mother is eligible for Medicaid, Medicaid pays

*          If your mother does get Medicaid, the nursing home must not require an additional payment over and above that designated by the Medicaid scheme in your State. 

*           The nursing home must not demand that your mother receive additional services not covered by Medicaid and then, if your mother declines those services, evict her. It should ask, in advance, whether those services are desired at specified additional cost.

*           The nursing home must not require additional donations to a charity as a condition of admittance.

Do not agree to arbitration

*           The contract may seek your consent to arbitration. If you agree, you will be giving up your right to a jury trial if a dispute arises. The rules are in flux at the moment, but, generally, you should decline such a provision.

The nursing home must protect property reasonably

*           The nursing-home contract may try to fudge its responsibility to take care of your mother’s property, but the bottom line is that it is obligated to care for your mother’s property during her stay. You should, however, use good judgment to safeguard her valuable property like fine jewelry by keeping it elsewhere.

Protect yourself. Cross out, and sign the right way

*           Cross out provisions in the contract that you decline, and put your initials by the strike-outs. 

*           Be sure to sign the contract only as your mother’s agent. Your signature should read: “[Mother’s name], by [your name], her agent.” 

To be fair to nursing homes, they are entitled to be paid and they often have difficulty collecting on legitimate debts. Facilities are forbidden from suing to take a resident’s Social Security or pension income. They must comply with strict federal consumer-protection restrictions. Despite these payment hurdles, they must still protect frail and vulnerable people from all manner of harm. They also suffer public hostility, thanks to the misconduct of some bad actors. We always urge cooperation with nursing-home personnel if feasible, because their job is a difficult one.

On the other hand, you and your family have the right to be protected from the excesses of bad actors – or from the imperfections, for example, of the facility mentioned above that misuses the “personally liable” language. Thus, no matter how reputable the facility, it is good judgment to consult an attorney before you sign an admission contract. If that’s not possible, then take care and time to study the contract, get facility staff to explain it to you, and strike out the objectionable provisions as advised above.

A few moments of care, even despite the stressful circumstances you are surely in at the time, can save you a lot of difficulties later. Please feel free to reach out if you have questions or need assistance by calling us at 1.800.660.7564 or by emailing us at info@covertlaw.com.

Common Online Scams and How to Avoid Them

The online world is rife with scams, and the number of people in the online world makes it a target rich environment for scammers. Seniors and near seniors should be aware of some of the more common attacks aimed to gain access to your money as well as identity. If you have social media accounts, email, or shop online, you are being targeted by scam artists. Here is what you need to know about some of the most common online scams. 

The product reads or sounds to be amazing. There are testimonials of success or satisfaction galore with the product that includes a Free Trial Offer! What can go wrong if all you do is pay a modest sum for shipping and handling? Here is what is wrong. Your payment for shipping and handling allowed them access to your credit or debit card information and buried deep in the fine print are the real terms of the deal which obligate monthly payments of some much higher monetary amount after your free trial expires. This payment has to be canceled within the stringent guidelines of the contract you agreed to by clicking a box. Read the user agreement or contract parameters before accepting the free trial. Reputable companies will allow cancellation of the advertised product however, if you cannot get out of the contract immediately cancel your card and negotiate a refund. If that doesn’t work, contact your credit card company and make an appeal for their help to gain restitution.

Always be aware of your digital surroundings as local Wi-Fi zones may leave you vulnerable to a hotspot imposter. In a coffee shop or an airport if you are logging onto free Wi-Fi or what resembles a pay service like Boingo Wireless you may be logging onto an illegitimate site designed to look like the real thing. A criminal can be hosting a false Wi-Fi site near you on a laptop. Free, unsecured sites allow for crooks like this to data mine your computer or phone for credit card, password, or banking information. The information is then typically resold to another criminal who will exploit your information for money. It can be tough to tell what a legitimate Wi-Fi spot is. One protective mechanism is to ensure you are not automatically set up for non-preferred networks. If you are not sure how to do this, ask a trusted internet savvy family member or friend. When traveling pre-purchase a credit gift card through MasterCard or Visa and use this for online purchase for access to airport Wi-Fi to protect your data and do not do banking or internet shopping from any public hot spot unless you are sure the connection is secure as it is not worth the risk.

Don’t fall for click bait. The chances of you being the winner of a contest for a free iPad or other expensive prize is likely a scam to get you to click the link provided to “learn more”. Often the connection is grabbing your IP address and adding your computer to a botnet that can be used for a multitude of nefarious purposes. Before clicking on a shortened URL typically found on Twitter and other social media that limits characters check the profile of the user promoting the link. For instance, if the user is following thousands of people, but no one follows them, it is most likely a bot set up to trap your data. 

Sometimes on a computer, a window will pop up about seemingly legitimate antivirus protection with an alert stating that your machine has been compromised with a dangerous virus, bug or malware. You are then prompted to click on a link that will scan and remove the offending virus for a fee and the promise to clean up your computer. When you click on the suggested link, the bogus company will instead install malware, or malicious software, on your computer, compromising all of your data. The front is to scare you into acting right away out of fear to protect your computer, but the opposite happens. Often the design of these pop-up windows has a look and feel that mimics reputable companies like Microsoft. If a pop-up virus warning appears, close the window without clicking on any links, and then use tools in your operating system to run a scan to check for system integrity.

If your bank sends you a text message on your cell phone stating there is a problem with your account and you need to call right away with account information it is not legitimate. Another text message might read that you have won a gift certificate to a well-known store and that all you have to do is call the toll free number and provide your credit card information is also a scam. The gift certificate scam will ask for payment information for shipping and handling to receive your winnings. This is a technique known as smishing, which stands for SMS phishing. Like its email version counterpart phishing, you will lose control of your credit card data and have to chase down fraudulent charges. A real bank and legitimate store would never ask you to reveal account information over the phone for security or to claim a prize, so don’t do it, ever. 

It is noble to be charitable, and Americans are some of the most generous people in the world. Whether in email, social media, text, or phone call do not donate sums of money to charitable causes as the charity is most likely a scam designed to gain access to your money and banking data. Many of these bogus charitable scams will use current headlines to garner your sympathy and get you to act now. Donate to real charities on their legitimate and secure websites only. Write a check to the Salvation Army or Hospice and send it to their valid mailing addresses. Do not be goaded into immediate action. Have a plan for what you choose to donate to charity and follow your plan. 

One of the cruelest scams online is the dating site or chat room scam which preys upon the lonely elderly. You might play a virtual game together online, exchange pictures, or even talk on the phone; that is the hook. You feel like you have met someone you can relate to that eases your loneliness. Typically what happens next is there is a need to wire money to escape a foreign country, an abusive parent, get medical care, or buy a plane ticket to travel to you. It isn’t true. This person isn’t the new love of your life, and you will lose your money and have your heart broken. Scam artists in online social networking specialize in luring the lonely into friendships and love affairs. Be smart about how you approach dating and social networking sites. The minute someone asks for money immediately sign off and employ these tips for keeping yourself safe from online dating scams.

Even be wary of online shopping sites like Amazon or eBay as they allow resellers access to their platforms. Just because you are on a reputable site does not mean the reseller is trustworthy. In some cases, the scammers will send a product, but it will be counterfeit. In other cases, they will post delivery to you 3 to 4 weeks from purchase date, knowing that Amazon pays sellers every two weeks. The scammer will then receive the money from the you and the legitimate company, and you will never receive anything. They have your money, and you have nothing.

The online world is always changing, and scam artists change with it because it is so lucrative. Even if 1 percent of their targeted victims fall prey to their tactics, scammers can make a lot of money. Don’t let that money be yours! Dealing with reputable companies and trustworthy information is the key to your ability to enjoy a successful aging strategy. Contact our office today and schedule an appointment to discuss how we can help you with your planning by calling us at 1.800.660.7564 or by emailing us at info@covertlaw.com.

US Justice Department Elder Fraud Sweep

In the largest ever nationwide elder fraud sweep the US Department of Justice (DOJ) has identified more than 260 defendants in fraud accounting for more than 750 million dollars. In each case, the defendants allegedly engaged in financial tactics that either specifically targeted or mostly affected seniors. The fraud operations are evident in every federal district in the United States. 

Fake drug discount cards, remote access to computers under the guise of technical support, relative in distress needing cash stories (the so-called “grandparents scheme”), insurance fees to collect nonexistent sweepstakes prizes, mass mailings and money mule fraud, and posing as debt collectors are some of the more prevalent schemes used by con artists. In one of the most horrific cases an 83-year-old woman was defrauded of her life savings by her caregiver; with no means to afford her retirement home bills, the woman sadly took her own life.

In earlier decades fraud schemes were not uncommon. Snail mail and phone scams however reached more limited victims. Now that digital technology, the internet, email, and social media is pervasive, transnational criminal organizations are “all in” to defraud the elderly of their money at a time when the cost to a senior’s life is frequently “catastrophic and irreversible” according to Attorney General William P. Barr. The Justice Department has vowed to prosecute these despicable crimes with an all-out attack against these swindlers and it’s a good thing as the numbers of incidence continue to rise. The current sweep involves 13 percent more criminal defendants, twice the amount of fraud victims and 28 percent more in elder monetary losses. In total, over 2 million older adults were affected by the current alleged fraud crimes. 

The transnational component of elderly fraud cannot be understated. The Office of International Affairs through the DOJ is working with numerous countries to secure evidence and capture defendants. Extraditions from Canada, The Cayman Islands, Costa Rica, Jamaica, and Poland are all part of this latest sweep of elderly fraud cases. Law enforcement partnerships such as the International Mass-Marketing Fraud Working Group (IMMFWG) is a network of criminal and civil law enforcement agencies including Belgium, Canada, Europol, the Netherlands, Norway, Spain, the United Kingdom, and the United States. By sharing information and providing avenues for criminal extradition this international body is a model of cooperation against specific threats that endanger the financial well being of member country’s residents.

What can you do at home to help protect yourself or a loved one from financial scams? Education is critical as to how these fraud operations function. A scammer will try to evoke a strong emotional response in their targeted senior to persuade them to part with their money. For example, a senior experiencing a high arousal emotion like excitement or anger makes them more susceptible to opt in on a risky decision. So a senior should not make what is called a “first flush” decision. Allow 24 hours to pass before opting in on an enticing scheme if you are becoming overly excited and feel pressure to make a quick decision shut down your contact with the person or organization and wait. 

One of the easiest ways to avoid scams is never giving out personal information to unknown entities. Ask for credentials, speak to supervisors, do a background check, get another trusted individual in your life involved in what you are considering BEFORE making any decisions. Have systems in place for a trusted family member or financial professional to approve of financial transactions when they are outside the scope of your normal daily purchases or bill payments. Also, review any auto deductions in your bank account monthly. Scammers often start with a small withdrawal to see if there is oversight in the account that targets fraud or identity theft.

Consumers can file elder fraud complaints with the Federal Trade Commission at www.ftccomplaintassistant.gov or 877-FTC-HELP. The Department of Justice provides resources relating to elder fraud victimization through its Office of Victims of Crime. Get educated; learn more ways to protect yourself by connecting with trusted counsel. 

If you have questions or would like to discuss anything you’ve read, please don’t hesitate to contact us at 1.800.660.7564 or by emailing us at info@covertlaw.com.

The Senior Safe Act

The Senior Safe Act, signed into law by President Trump earlier this year, is designed to protect our elders from financial abuse from either within a family or support system, or by scam artists preying upon them. Tens of billions of dollars each year are illegally taken from US seniors and these numbers only reflect the crimes being reported. 

Issue	Percentage of cases reported
Third-party abuse/exploitation	27%
Account distributions	26%
Family member, trustee or power of attorney taking advantage	23%
Diminished capacity	12%
Combined diminished capacity and third-party abuse	12%
Fraud	6.30%
Elder exploitation	5.70%
Friend, housekeeper or caretaker taking advantage	<1%
Excessive withdrawals	<1%

SOURCE: North American Securities Administrators Association

 

Often a senior does not report financial abuse or identity theft because they are unaware, embarrassed, or worse, they think that someone will deem them mentally unfit and they might be “put away” as a consequence of having been exploited. While these are real issues and fears experienced by elderly people, the scale of financial exploitation is so great it has to be addressed.  This is why the enacted Senior Safe Act, coupled with the Elder Abuse Prevention and Prosecution Act (signed into law October 2017), as well as two Financial Industry Regulatory Authority (FINRA) rule changes (which have already taken effect), will provide the legal protections and financial industry framework our senior population need and deserve. One of the most important aspects of the new FINRA rules is the ability for member firms to place a temporary hold on disbursement of funds or securities when there is a reasonable belief that a senior is experiencing financial exploitation, thus protecting assets before they are taken from the senior. This new rule, in conjunction with the Senior Safe Act, can help keep seniors’ assets from vanishing.

The Senior Safe Act, which was originally initiated by Rep. Bruce Poliquin of Maine, is based on the already existing program in that state with the same name. Similar to the Maine program, the federal legislation allows insurance and financial advisors to report incidence of suspected cases of financial fraud involving their senior clients to financial institutions, who in turn could pass the suspicions on to the proper authorities. 

As long as the insurance and financial institutions elevate concerns in good faith and their employees have received the proper training, the law will protect the institution and its workers from liability in a civil or administrative proceeding where information had been presented to authorities in the hopes of protecting a senior client from financial abuses or identity theft. The training includes a collaborative effort between state and federal regulators, financial firms and legal organizations, credit unions, broker-dealers, insurance companies and agencies, and investment advisers to educate employees on how to spot and report suspected elder financial abuse. 

Seniors who are most active in communicating with a trusted professional third party about their finances are the least likely to fall victim to financial fraud. Counterintuitively, most financial fraud happens to seniors who do not display signs of cognitive impairment. Senior participation with professional and properly trained employees of financial institutions is the back-story of this bill. All of the legal protections of the Senior Safe Act will achieve nothing if there is no participation by seniors. 

It is advisable to find a trusted professional adviser to help protect seniors against financial abuse and identity theft. The Senior Safe Act should make it much easier for seniors to find a properly trained individual who will monitor their financial accounts and be able to report signs of potential trouble to authorities. That trusted individual will be able to identify the warning signs of common scams and educate seniors as to how best to protect themselves; such as how often to check credit ratings for signs of identity theft, reviewing financial statements, identifying common phone and online scams, and more. The laws are in place to help seniors stay protected. Get protected by becoming more involved in your own personal financial world. Contact our office today and schedule an appointment to discuss how we can help you with your planning and participation – 1.800.660.7564 or email us at info@covertlaw.com.

Vocational Rehabilitation:  A Powerful Tool for Veterans Wanting to Enter the Civilian Job Market

Prospects for veterans looking to enter the job market have drastically increased since the Great Recession. In 2016, the unemployment rate for veterans (4.7%) was actually slightly lower than the rate for the entire population (4.85%). One factor that has contributed to veteran’s success in the workplace is the Vocational Rehabilitation and Employment (VR&E) service provided through the Department of Veterans Affairs.

 

Through VR&E, eligible veterans or active duty service members are given a wide range of services to assist with job training, employment accommodations, resume development/review, and personalized coaching to assist with job seeking skills. If you want to fan your entrepreneurial flames after returning from duty, VR&E also provides guidance in starting your own business. Lastly, VR&E provides assistance for service members who are severely disabled and unable to work in a traditional work environment.

 

Eligibility requirements for active duty servicemembers:

• Expect to receive a discharge other than dishonorable when leaving active duty
• Acquire a memorandum rating of 20% or more from the Department of Veterans Affairs
• Apply for VR&E services

 

Eligibility requirements for veterans:

• Discharged with a status other than dishonorable
• Have the VA declare you have a service-connected disability rating of at least 10%
• Apply for VR&E services

 

The period of eligibility to register for VR&E services is 12 years from being notified of the latter of either the date of separation from active duty, or date you were first notified of a service-connected disability rating from the VA.

 

After eligibility has been established, you will be directed to a Veterans Resource Center in your area where you will be evaluated to determine your specific abilities and needs. This evaluation includes an assessment of your interests, aptitudes, abilities, and whether your service-connected disabilities impair your ability to obtain/hold a job. Post-assessment, you will be given vocational-specific training aligned with your interests. You will be assigned a case manager who will be in charge of guiding you through this process. Generally, the case manager will directly instruct you on subjects where he/she has expertise, and provide supervision to other instructors who provide supplementary services.

 

During your evaluation, if it is determined that your service-connected disabilities are too severe to participate in the traditional work environment, you may be provided with independent living services. You can only take advantage of these services for 24 months because they are meant to be a point of rehabilitation to help you transition into the workplace, rather than a place to stay. Some of the benefits provided include: making arrangements for consultations with health professionals, counseling services to aid in determining your individual independent living needs, and providing information for home modification benefits you may be eligible for, such as the Specially Adapted Housing grant.

 

By now, you’re probably thinking that this investment will take up a good chunk of your time, and you may be worried about maintaining an income while participating in this program. Another great feature of VR&E is that you may be eligible for a subsistence allowance provided by the VA. The amount you receive depends on your rate of attendance in the program, the number of dependents, and the type of training. To view the different rates, click here.

 

VR&E is just one of the many opportunities offered to veterans seeking to enter the civilian job market. If you would like to learn more about other programs, or need assistance in understanding your rights if you are a disabled veteran, please do not hesitate to contact our office.  Give us a call at 1.800.660.7564 or visit our website:  www.covertlaw.com.