About the Author

Peter J. Losavio, Jr. is an attorney with Losavio & DeJean, LLC in Baton Rouge, Louisiana, licensed to practice law in Louisiana and Texas. His practice is limited to asset protection, estate planning and tax planning. He obtained a Bachelor of Science and Master of Science in Chemistry from Tulane University, a Juris Doctor Degree from Louisiana State University, and a Master of Law from the University of Florida. Peter Losavio is one of two attorneys appointed by the Special Needs Alliance to do special needs trust and assist elderly and disabled in the State of Louisiana. He has also received a certificate of completion of the CFP Professional Education Program from College of Financial Planning in Denver, Colorado. Mr. Losavio has spoken at conventions and continuing education programs to both attorneys and accountants. He has taught at Louisiana State University and written numerous articles and course material for both attorneys and accountants, including credit as co-author and lecture of Exempt Asset Planning: An Alternative to Bankruptcy. Mr Losavio is a: Certified Elder Law Attorney (CELA) by the National Elder Law Foundation Louisiana Board Certified Estate Planning and Administration Specialist Louisiana Board Certified Tax Specialist Accredited legal attorney by the Department of Veterans Affairs and a member of the: National Academy of Elder Law Attorneys American Bar Association Society of Louisiana CPAs Life Care Planning Law Firms Association
as recognized by the Louisiana Board of Legal Specialization

You dont have to fight alone.

ALZHEIMERS

B
A Louisiana Guide To

CARE

PETER J. LOSAVIO, JR.

ALZHEIMERS
A S

Published by Lo vio & D , LLC Attorneys at Law For more information, or to request additional copies, please contact Losavio & DeJean at: 8414 Bluebonnet Blvd. Suite 110 Baton Rouge, LA 70810 losaviodejean.com (800) 769-3522

2012 Lo vio & D

, LLC

TABLE OF CONTENTS
Ch pt r 1
Wh t i A zh i r Di ?

1 2
for I dividu ith A zh i r Di

Ch pt r 2
C r Optio

Ch pt r 3
Prof io to Co t ct for H p

10 14
of A zh i r Di

Ch pt r 4
Th S v St g

Ch pt r 5
D t ctio d Prop r Di g o i of A zh i r Di

16 20 22
h C ri g for Lov d O With

Ch pt r 6
C ri g for th C r Giv r

Ch pt r 7
Co o Co c r A zh i r

Ch pt r 8
L g St p You Shou d Co id r

28 34 36
Prot ctio Provi io ?

Ch pt r 9
Th B ic of M dic id

Ch pt r 10
Wh t Ar Spou

Ch pt r 11
So Fr qu t A k d M dic id Qu tio

38 42
t (Succ io ), d Do I N d to Avoid it?

Ch pt r 12
Wh t i Pro

Ch pt r 13
Wh t St p Shou d You T k No ?

46

CHAPTER 1 Wh t i A zh i

CHAPTER 2
r Di

Al heimer s disease is a progressive and fatal brain disease. Al heimer s destroys brain cells, causing problems with memory, thin ing, and behavior severe enough to affect wor , lifelong hobbies, or social life. Al heimer s gets worse over time and it is fatal. oday it is the seventh leading cause of death in the nited States.1 here are now more than 5 million people in the nited States with Al heimer s disease. very 72 seconds, someone develops this disease.2 he number of people surviving into their eighties and nineties is growing, due to changes in demographics as well as advances in medicine therefore, the number of those affected by Al heimer s disease will grow in proportion to this population. Direct and indirect costs of Al heimer s disease and other dementias including edicare and edicaid costs and the indirect cost to businesses whose employees are caregivers of persons with Al heimer s, amount to more than 148 billion annually.3 uch of the cost of care is absorbed by the Al heimer s patient and his or her family out of their own poc ets. aring for the individual with Al heimer s is not only e pensive, but also challenging. Al heimer s patients will e perience the progression of the disease in different ways at various stages of the disease. A caregiver s responsibilities can range from paying bills and balancing the chec boo , to bathing and dressing the patient. his chapter e plores the care options available for Al heimer s patients and the families who ma e great sacrifices to care for them. any care options e ist in the spectrum between living in a private residence and going to a nursing home. Yet an Al heimer s patient and his or her family often dread a nursing home as the only resort because they are unaware of all the other care options that e ist.
1 AL 2 AL 3 AL R S ASS A R S ASS A R S ASS A http: www.al .org , , at http: www.al .org al heimers disease what is al heimers.asp. , at http: www.al ,org al heimers disease al heimer , 13, available at national documents Report 2007Facts and Figures.pdf (last visited ct. 22, 2007)

C r Optio Di

for

I dividu

ith A zh i

any care options are available to a family caring for an Al heimer s patient. hese include such services, programs and facilities as: Priv t I -Ho C r n-home care wor ers can be hired privately or through a home health agency. here are many advantages to hiring home health aides or companions through an agency:
B

BA B BA B B

:
B

BA

B B

G
B

A / / Medical Alert Services

Medicare-Funded Home Health Services A A A A Adult Day Care Centers A ) : A A ) A PACE Baton Rouge P A PA E B Living Together in One Home A A A ) :
B B
3

911 1

PA E) B

R PA E B

R -

PA E B

R :

BP B
4

R
BA B BR B B B B BR BR B BR

B PA E

- -

PA E

PA E B A

PA EB

7 B PA E B R :

B R ) 9 -

A7

Assisted Living Facilities A ) A ) R -

BB B BB B

PA E B E B R P B R

R P / -

B B B

A PA E - 5 6

A P 1 A ) Hospice Services A) ) -

Continuing Care Retirement Communities R " " R )

'

7 A A '

A A '

R E 1 A )

A A

'

' A '

CHAPTER 3 Professionals to Contact for Help

A A '

A Geriatric Care Manager A

'

'

'

A A A ) Council on Aging A A ' G

10

B Friendly isitors Telephone Reassurance -

A A

'

A )

' A ' ' - / E ) ' :

B Family Caregiving Support Program -

B Transportation Services '

A - -

'

A A A

'

Elder Law Attorney A ' ' A '

G A

B Home Delivered Meals - A '

) A E A A ' A B A

'
B Senior Centers -

B Personal Care and Home Support Services - P

Alzheimer's Association A ' )

B ursing Home

'

A A A
12

aiver Programs - A
11

'

A A B

' R A 77 : A A7 - : : : ) 7 - 9

CHAPTER 4 The Seven Stages of Alzheimers Disease

R : Alzheimers disease is a progressive brain disorder which gradually destroys a persons memory and ability to learn, reason, make judgments, communicate, and carry out daily activities. There are typically seven stages of the disease; however, all experts do not agree that there are seven distinct stages. Additionally, each Alzheimers patient will experience the stages in different ways and for different lengths of time. Each stage can be defined based upon exhibited patterns of behavior. The Alzheimers Association defines the seven stages as follows:5 1. No impairment This stage may last for several years. There are usually no visible signs of the disease. Oftentimes, neither the family physician nor family members notice any changes. 2. Very mild decline Slight memory loss begins to occur. An individual may start to forget some names and dates, and begin to lose such things as car keys. An individual in this stage may be able to easily conceal problems, or compensate for them. 3. Mild cognitive decline Memory loss is more prevalent. This loss starts to affect everyday activities. An individual in this stage is often unable to accomplish even the simplest task, such as balancing the checkbook. Friends and extended family members may begin to notice the memory loss. 4. Moderate cognitive decline Memory loss becomes even more prevalent in this stage. Individuals may experience episodes of wandering, paranoia, depression, and sleeplessness. 5. Moderately severe cognitive decline The individual needs some assistance with the activities of daily living, such as bathing, dressing, and preparing meals. There are major gaps in memory. 6. Severe cognitive decline Significant personality changes may emerge. Individuals lose most awareness of events and
5 ALZHEIMERS ASSOCIATION, Stages of Alzheimers, at http://www.alz.org/alzheimers_disease_stages_of_alzheimers.asp (last updated Aug. 23, 2007)

B -

R )

R A7 1 1 9-9 1

910 Pierremont Rd., Ste. 410 Shreveport, LA 71106 (318) 861-8680

The Alzheimers Association is an extensive resource for information, teaching, family education, and support.

4 ALZHEIMERS ASSOCIATION, About Us, at http://www.alz.org/about_us_.asp (last updated Sept. 27, 2007)

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surroundings. Individuals generally can remember their own name; however, they may forget the name of their spouse. They have increased episodes of incontinence and require even more assistance with the activities of daily living. 7. Very severe cognitive decline Individuals in this stage are often residing in nursing facilities. They may lose the ability to walk, then the ability to sit. They are usually bedridden and need complete assistance with all aspects of daily living. They are incontinent, not able to feed themselves, and incapable of expressing their needs. Swallowing becomes impaired. Knowledge of the stages of Alzheimers disease can serve to be very useful to a patients family and caregivers. This can better help families and care providers plan for the future.

CHAPTER 5 Detection and Proper Diagnosis of Alzheimer's Disease

Many people find it difficult to take the first steps necessary in diagnosing Alzheimer's disease. Often, an individual and his or her family members do not want to admit there is a problem. This denial can delay the process of treating the disease and obtaining the necessary help and support services. Identifying signs and symptoms of Alzheimer's disease is the first step in early detection. Alzheimer's is not a normal part of the aging process. Memory loss can be caused by many different factors, such as infection or vitamin deficiency. Any time memory loss is detected, it is important to contact the family physician who can do testing and make a more formal diagnosis. According to WebMD, mild symptoms of Alzheimer's disease can include6:
B BI B B B B B B

Moderate symptoms of Alzheimer's disease

BI

6S

generally http://www.webmd.com/

15

16

B ho te ed tte t o B D ff c t o B Def c t B B

p tho ht peech e d e pected t to . d e o e; c d dw t

te ect

ob em w th comp ehe o b t to e eco

Timely dia no i ill allo amily mem e and ca e i e e oppo uni y o p epa e o e di ea e p o e ion Kno led e i po e Fi i i impo an o lea n a ou e di ea e and e e ou ce a aila le o elp e a lic ed and ei amily mem e Nex i i impo an o c oo e e i eal ca e p o e ional T e Alz eime ' pa ien o i o e ca e i e ould con ac no only a amily p y ician u al o a neu olo i p yc ia i and/o a p yc olo i T e a aila le medica ion ould e di cu ed ea ly in e dia no i T e d u ill no cu e e di ea e u ope ully ey ill lo do n i p o e ion T e e i no in le e di ea e ill Expe e Alz eime ' di ea e i e di icul o de e mine a e iden i ied i ac o d to et
BA e B Family i o y B i o yo B ie

ew th f m

o cope w th df e d . e

B epet t e t teme t mo eme t o B D ff c t B e te e t to et te f e pec the te fte oo o e e dow . B B B o

e to . d w de . h c ed o p e e the howe o .

to

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pco ce ch dh

c of co ce of mp

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a ill p o e an indi idual a Alz eime ' ima e a a illed p y ician can dia no e mo e an 90% accu acy 7 And ile i may e exac cau e o Alz eime ' di ea e e e uc a :

B D ff c t pe fo m

Severe symptoms of Alzheimer's disease may include:

B Comple e lo B B B

ea di ea e and

o e

o lan ua e and memo y allo in pea in i e i

B En i onmen al ac o

ei

lo un in o

in in ec ion and di icul y oanin moanin

B nc ea ed leepin B e u al o ea B o

T e p y ician ould di cu e e i ac o and ymp om and e ie medical eco d die and medica ion n o ma ion om e e ou ce a ell a om a p y ical exam can elp ule ou o e po i le cau e o memo y lo Addi ionally e p y ician may conduc a mini men al a e exam (MM E) T i e i mo commonly u ed y eal ca e p o ide o au e e indi idual' men al capaci y T e indi idual ill e a ed a e ie o que ion o c een o co ni i e impai men in a num e o a ea T e maximum po i le co e i 30 co e o 26 o le ene ally indica e ome i n o co ni i e decline T e o m and/o o a e o i e can e o ained a minimen al com

o p y ical coo dina ion ladde and o el con ol e en ial ac i i ie o daily li in

B ac o

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Cu en ly e e i no cu e o Alz eime ' di ea e; ne e ele e e a e ea men and e ice a ill ma e li e ea ie o no only e Alz eime ' pa ien u al o i o e amily and ca e i e

7 A Z E ME A

OC AT ON Steps to Diagnosis, at http:/www.alz.gor/alzheimers_disease_steps_to_diagnose.asp (last update July 5, 2007)

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In addition to the MMSE, another widely used mental test is the minicog. This test is composed of three-word recalls and a clock-drawing test.

CHAPTER 6 Caring for the Caregiver

A diagnosis of Alzheimers disease affects not only the individual diagnosed, but also the caregiver. Caring for someone with Alzheimers disease is challenging. The task of caregiving often falls primarily on the shoulders of one person. The stress of this 24-hour care, in addition to the feelings of despair and sadness, can take a toll on the caregivers own health. A person caring for an Alzheimers patient needs to recognize:
B

w w w
B

w w

w w
B

w w w w w

19

20

(
B

w w w

CHAPTER 7: Common Concerns When Caring for a Loved One with Alzheimers Disease
What is sundowning and how do I deal with it? S w w w w w S D w w w w

w w

w (

w
B B

w
B B

w w

R B w

How do I Deal Effectively with Agitation? :

B B
8

8 9 W BS

R R G D RY F R S R V S D U BR DG D D

G S RY

GU G

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22

B
10

B alidate the dementia patients feelings. B Offer care with dignity. B Do not rush. B Offer affirming statements.

w Communication w w w w Good communication is an important part of any relationship. When caring for a person with dementia, communication can become more and more difficult. For the patient, expressing and processing information becomes impaired. This inability to express and process can be frustrating and manifest itself as agitation. Agitation can include anything from pacing to actual lashing out. As caregivers, we want to prevent this reaction as much as possible by communicating effectively and allowing the person time to process and respond. The following tips will improve communication:
B Approach from the front to prevent startling. B B f he or she cannot find words, gently finish the sentence. B epeat information when needed. epetition is good. B Fre uently affirm and praise him or her, even for the smallest things. B Allow choices when possible. For example, offee or mil lue or yellow shirt B alidate feelings. B Give hugs many times a day. B o not argue. ou will never win. B Laugh together.

The Person w w

G UK Journal of Dementia Care said, If we spend as much time trying to understand behavior as we spend trying to manage and control it we might discover what lies behind it is a genuine attempt to communicate. When agitation is displayed, stop and validate the dementia patients feelings. You seem upset, can you tell me what is wrong? This simple question can help defeat the escalation of a difficult situation. The most common time when agitation is evident is during personal care. The dementia patient may feel as if he or she has lost his or her sense of dignity. When providing personal care, start by briefly explaining what will happen: Im going to help you wash your hair. Doesnt it feel good to have clean hair? Be sure to give explanations in a gentle tone at every stage, and do not rush. Rushing will almost always lead to agitation and make the day more difficult for both of you. Be sure to offer affirmation throughout the day such as: Thank you for helping me pick out those clothes. You look beautiful today, or You did a great job setting the table. Often fear will spark agitation. Use a gentle touch and softly spoken positive words while completing all tasks and remind the patient that he or she is in a safe place.
10 WORLDNET 1.6

aintain eye contact.

B Lower the tone of your voice a high pitch may indicate that you are upset. B mile and be pleasant. B Tal with a calm presence. B pea slowly, clearly, and directly. B dentify yourself. B se short simple sentences. B As one uestion at a time. B liminate bac ground noise. B Give plenty of time to respond.
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B f your tal becomes heated, stop. Leave the room briefly and try again later. B o not tal down to the patient. B o not correct him or her.

B o not demand. As nicely. B o not ta e adverse behavior personally. B low down. urrying increases frustration.

Pain Management Pain occurs in a cycle.

Non-Verbal Communication Non-verbal communication is important to be aware of, both in what we are communicating to our loved ones and what they are communicating to us. Non-verbal communication can be processed and expressed by persons with dementia through body language, facial expressions, and tone of voice. They are sensitive to how you communicate with them and are able to determine if you are being sincere or not. Interpreting Non-Verbal Communication If your loved one
gets up and goes to the bathroom several times per hour

then he or she
may be communicating pain, a possible urinary tract infection. chedule an appointment with their physician may be expressing that they are too warm. Try putting on lighter clothing or something that is difficult to ta e off independently may be experiencing pain somewhere loo at their position and as them if they hurt anywhere may not be hungry try feeding later may be expressing fear of being alone try giving them an object to hold when you leave the room, such as a stuffed animal, and assure them that you will be bac

ta es off his or her shirt in public

has a grimace on his or her face

f a person with dementia is in this cycle and unable to communicate it, you may have to step in and figure out what the problem is. There are many causes for pain, including infection, arthritis, joint and muscle problems, inflammation, headaches, etc. f your loved one has a history of any of these conditions, maintain treatment as ordered by a physician. ontinue to have your loved ones overall health assessed by routine exams to determine any condition that could cause pain or discomfort. Prior to the appointment, inform the physician about your observations. ementia typically does not progress that rapidly. f your loved one ta es medication, be aware of the possibility that some medications can cause agitation. Always consult your physician if you have any uestions or concerns. For the caregiver, the issue of overall care management is a constant guessing game of assessing and responding to the needs of their loved ones as accurately as possible. Environment nvironment includes the circumstances and conditions that surround us and it plays a large role in human behavior. t is important to create a safe and comfortable environment for the person with dementia. The following areas need to be assessed for optimum comfort:
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firmly holds her mouth closed when you are feeding her cries when you wal out of the room

25

B Temperature: too hot or too cold B Lighting: too bright or too dim B

CHAPTER 8 Legal Steps You Should Consider

ou will need to ma e decisions for your loved one when he or she no longer has the mental capacity to do so. n order to avoid lenghty legal proceedings nown as interdictions, you need to ta e action as soon as possible. f you do not ta e the time to have your loved one prepare and execute a power of attorney, then in the event that you need to ma e financial, legal,or healthcare decisions, for your loved one, you may need to go to court to have your loved one interdicted. nterdiction is an expensive, time consuming, emotional process, which should be avoided at all costs. This can be accomplished by the use of a power of attorney. A Po er of Attorney is a document that gives someone the legal authority to ma e decisions for you if you cannot ma e decisions for yourself. There are powers of attorney for healthcare issues and for financial matters. When a person is suffering from Alzheimers, you should consider ma ing the power of attorney immediate. An immediate power of attorney gives you the right to ma e legal decisions once it is executed (signed). A power of attorney can also be springing or deferred. A springing power of attorney only comes into effect when the person becomes incapacitated. The determination of whether the person is incapacitated is determined by two physicians, one of whom must be the attending physician. All powers of attorney in Louisiana are durable, unless otherwise specified. A durable power of attorney is a power of attorney that is still effective after incapacity. The healthcare power of attorney allows someone to ma e decisions concerning doctors, hospitals, medication, and medical procedures. nder Louisiana law, if you do not execute a healthcare power of attorney, then the law designates an order of persons who can ma e a decision for you. f you are married, the law presumes that your spouse has authority to ma e decisions for you. f you do not have a

al

ays hall ays: too cluttered

B Noise: too loud, too much B People: comfort with those who are around.

Loo for patterns associated with agitation, such as the time of day, activities, events, children visiting, or bathing. When you notice the pattern, readjust your schedule to meet the dementia patients needs. Agitation: Summary and Conclusion se behavior acceptance when dealing with a person suffering from dementia. This term means loo ing beyond the behavior to the core of the problem causing it. Loo to correct the problem, which typically will adjust the behavior. Always remember that as individuals, we all need to be loved. The person with dementia needs to feel loved, safe, secure, needed, useful, and a part of the environment. We must create these feelings by showing patients love, including them in activities when possible, and allowing them to help in whatever ways they can. The person with dementia is not able to change, so you, as the caregiver, must. onstantly assess how you can respond to a situation or behavior in a positive manner.

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spouse, but have children, then the children by majority vote can decide your medical treatment. This may or may not be the order that you wish or the person that you wish to have ma ing medical decisions for you. Furthermore, by not executing a healthcare power of attorney and advanced medical directives, you are not maintaining control over your healthcare. First, executing a healthcare power of attorney and advanced directives allows you to maintain control over your healthcare, even when you are not able to communicate your decisions because of illness or medication. econdly,it removes the emotional burden from your agent because he or she does not have to ma e the decisions about your healthcare. When you have executed advance medical directives, your agent only has to carry out your wishes he or she does not have to ma e the decision because you have already made it. Thirdly, and maybe most importantly, is that there can be no disagreement between your loved ones. Without medical directives, your agent would have to ma e the decisions concerning your healthcare which other members of your family may not agree upon. This can lead to hard feelings and animosity. owever, when you have ta en the time to execute advance medical directives, then you have made the decision for yourself and you're not leaving it up to your agent or your family to ma e it. A financial power of attorney covers a wide range of financial situations: from handling real estate, to dealing with ban accounts and paying taxes, to almost anything you can thin of from a financial standpoint. t is crucial that you have the appropriate financial power of attorney in place, and that it gives as many authorizations to the agent as possible. t is very important that the power of attorney be much more extensive than the typical two or three page power of attorney that is used in situations where the person does not suffer from Alzheimers or dementia. aving the appropriate financial and healthcare powers of attorney is a critical first step. Next, depending on the specific situation, other legal issues related to end of life planning may arise. A living will is an expression of your wishes regarding end of life decisions. f you do not want to be ept alive artificially should you be
29

terminally ill with no chance of recovery (as decided by two doctors) and unable to communicate your wishes, before the crisis arises, you should sign a living will ma ing your wishes clear. For a doctor to withhold or withdraw artificial, life sustaining treatment, there must be clear, persuasive evidence that those are the patient's wishes. The best way to accomplish this, of course, is to put your wishes in writing by signing a living will. ou may remember the Terry chiavo case. Terry chiavo did not have a living will. er husband and her parents could not agree on what life sustaining procedures should be withdrawn. This agreement dragged on through the courts while Terry chiavo lived for over 15 years in a vegetative, comatose state. ecause of the Terry chiavo case, the Louisiana Legislature has modified the living will statutes. t now allows you to ma e two choices concerning withdrawal of life-sustaining treatment. One choice is to withdraw all life-sustaining procedures, including nutrition and hydration the second choice is to withdraw all lifesustaining procedures except nutrition and hydration. ts not necessary to follow the Louisiana tatute exactly as its written, since you could decide to withdraw all life-sustaining procedures including nutrition but not hydration. oreover, after the Terry chiavo case, the atholic bishops in the tate of Louisiana wrote a atholic living will. atholics may consider executing this living will rather than the secular living will that was passed by the Louisiana Legislature. n summary, it is important to realize that a living will can be tailored to suit your wishes. ome persons may not want to allow prolonged life sustaining procedures while unconscious. Others may want to use all means possible to eep them alive. till others may wish to decline all life prolonging treatment with the exception of food or water. Lastly, some may wish to decline all life prolonging treatment with exception of food. egardless of your decision, it is critical that you discuss your wishes with your family members and loved ones. While a living will is clear and convincing evidence of a person's wishes, it is possible, from a practical standpoint, that in a true end of life situation, the documents strengths may be diminished if parents, children, or spouses claim the
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living will does not reflect their loved ones wishes. This could also happen if close family members simply do not agree with one another on whether the living will reflects the loved ones wishes. As in the Terry chiavo case, once a person is incapacitated, unconscious, or on life support, the hospital and doctors are reluctant to withdraw lifesustaining procedures. Therefore, if you do not wish to have your life artificially prolonged when you are in an irreversible, terminal condition, then execute a living will. These forms are readily available at the hospital, doctor's office, or via the internet. The ey is to act now. ou may want to begin by contacting an elder law attorney to discuss uestions you have about financial powers of attorney, healthcare powers of attorney and living wills. Once you have been educated about your options, you can ma e the decisions that are right for you. And once your decision is made and you have acted on it, you can ta e the next step of discussing your wishes with your family. An elder law attorney can help you discuss these difficult and emotional issues with you and your family. esides executing powers of attorney, advance medical directives and a living will, you and your family need to consider other legal documents. Revising last ill and testaments and trust Whenever a major life event occurs, it is always recommended that you review your wills and trusts. our current legal documents, although ade uate at the time that they were prepared while you were in good health, are probably no longer appropriate. ou may want to ma e changes that will protect you and your family in your present healthcare situation. eing diagnosed with an illness such as Alzheimer's disease is a major life event necessitating review of your estate planning documents. The plans and legal documents that were put into place when you were healthy may no longer be sufficient. For example, many clients set up what are referred to as Love ou Wills or weetheart Wills, in which each spouse leaves everything to the other spouse either outright or through usufruct and then at the death of the second spouse, to the children. ou should reconsider this will. This may be the wrong way to plan things now, given one spouses illness. t is usually possible that things can be arranged in
31

another fashion. For instance if the healthy spouse passes away first, the assets can be put into an asset protection trust to benefit the spouse who is suffering from dementia or can be passed down to the children to protect those assets from edicaid. This is where specific legal planning, because of the situation, is critical. f illness has not progressed, you may wish to protect your assets from possible nursing home care costs by establishing an irrevocable trust and transferring some of your assets to the trust. This should be done at least five years in advance. Living trusts (revocable trusts), are good estate planning devices to avoid probate. They are not good devices or good strategy, however, for a person with Alzheimer's or dementia. For example, if you have transferred your house into a revocable living trust, then you cannot ualify for edicaid unless the house is transferred bac out of the trust into your individual name. Furthermore, the living trust does not help you ualify for veteran's benefits. The eteran's Administration still considers this to be your asset so it may prevent you from ualifying for A benefits. Revie ing life insurance policies and pensions plans eviewing beneficiary designations on your life insurance and pension plans is critical. This is necessary in the event that the healthy spouse passes away. ou do not want assets from life insurance or pension plans and As to go to the spouse with dementia, because this money could potentially dis ualify him or her for edicaid if he or she has already been ualified. f not, then it would have to be spent down before he or she would ualify. t would be better to set up a edicaid protection trust and ma e it the beneficiary of the life insurance, pension plan, 401 , or A. Caregiver contracts A caregiver contract, also referred to as "a care agreement, a family agreement," or a personal service contract, is an agreement between an individual who suffers from dementia and his or her caregiver. n this contract, the caregiver agrees to provide care and/or housing to the individual and the individual agrees to compensate the caregiver for his or her services and/or living accommodations. A properly drafted agreement is a way for an individual to transfer money to a
32

caregiver and not create a edicaid ineligibility. areful consideration should be given to the terms of the contract. The Louisiana epartment of ealth and ospitals will only honor an agreement as if it is according to their rules and regulations. Furthermore, there are income tax considerations and tax planning that has to be done or that should be considered in using a caregiver contract strategy. Strategy for financial gifts o not ma e any gifts without consulting an attorney. An attorney can help you review your financial situation to determine whether a gifting plan or other financial strategy is appropriate. a ing gifts can protect your family and help you save your estate, but acting improperly can have severe legal conse uences and can ma e you ineligible for government benefits. Thus, it is crucial that you have sound advice from an attorney before ma ing any gifts. Long-term care strategies n addition, you may want to consider the benefit programs that are available. For instance, edicaid, a federally funded program administered by the tate epartment of ealth and ospitals, may pay some healthcare costs (assisting with bathing, light house eeping, coo ing, laundry, etc.) while an eligible person remains at home. till, there are many strict rules about how you can ualify for this and what benefits are available. With that in mind, let's review the basics of edicaid and how to ualify.

CHAPTER 9 The Basics of Medicaid

n order to understand edicaid ualification, you first need to now how edicaid treats your assets. edicaid basically brea s your assets down into two separate categories: assets which are exempt, and assets which are non-exempt and countable. xempt assets are those which edicaid will not ta e into account at this time. Generally, the following assets are exempt:
B ome. f it is in Louisiana, the home must be the principal place of residence and the resident may be re uired to show some intent to "return home," even if this never actually ta es place. B ouse and personal belongings, such as clothing, furniture, and jewelry. B One vehicle (a car, truc , or van). B Prepaid funeral plans and burial plots. B ash value of life insurance policies with an aggregate face value of no more than 1,500 may be exempt, depending on your situation. B ash (for example, a small chec ing or savings account) not to exceed ,000.

n certain instances, some of the assets, such as income-producing real estate, may be either accountable or exempt depending upon your particular situation. The assets that are not exempt are considered accountable. This typically includes chec ing accounts, savings accounts, certificates of deposit, money-mar et accounts, stoc s, mutual funds, bonds, most As, most pension plans, second cars, and others.

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While the edicaid rules themselves are complicated and somewhat tric y for a single person, it's safe to say that you will ualify for edicaid so long as you only have exempt assets, plus a small amount of cash, less than ,000.

CHAPTER 10 hat are Spousal Protection Provisions?

arried couples can benefit from the spousal impoverishment provisions of the edicare atastrophic Act of 1988. The intent of the law has changed the eligibility re uirements for edicaid in situations where one spouse uses nursing home care, while the other spouse remains in the community (for example, at home or in an assisted living facility). nder the pousal Protection Act, a couple gathers all of its nonexempt assets together in a review. The exempt assets are the ones described earlier, such as the home, one vehicle, etc. The non-exempt assets are then divided in half with the community spouse being allowed to eep one-half of all accountable assets up to a maximum of approximately 113,640. The other half of the assets must then be "spent down." The laws are very tric y as to exactly how the spend down is completed. That is to say, that someone who is pursuing edicaid eligibility should consider the following types of spend down items. These are listed in no particular order:
B Purchase pre-paid funeral plans B Purchase a new car B Payment of healthcare costs B Purchase a new home B

a e home improvements

B uy household goods or personal effects B epay debts

These are not the only appropriate items for a spend down there are other expenses which would also ualify. The main rule to eep in mind is that whatever goods or services are purchased must be purchased at fair mar et value and must be for the benefit of the patient and/or the patient's spouse.

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CHAPTER 11 Some Frequently As ed Medicaid Questions

As complicated as edicaid is, there are certain uestions that come up over and over again. While no boo will be a substitute for the advice of an attorney experienced in counseling individuals with Alzheimer's disease and their families, let's at least review some of the uestions that are fre uently as ed. Question: Is a married couple always required to spend down all of their assets before qualifying for Medicaid? Answer: It is possible, with the proper strategy, for a married couple to lose none of their assets when one spouse goes into a nursing home. This depends greatly on the type of assets and the married couple's willingness to engage in Medicaid planning. Although there are income and asset criteria the couple must meet before one of them qualifies for benefits, federal and Louisiana State Law was written to protect individuals from becoming impoverished if the spouse needs care. Medicaid planning is like tax planning in that the law provides certain "safe harbors" that, with expert advice from an attorney, can protect the life savings of Medicaid applicants and their families. An attorney can help you determine the ways to protect your assets if you are willing to engage in those strategies. Question: Will I lose my home? Answer: Many people who apply for Medicaid ask this question. Generally, the home constitutes a married couple's principal asset. Often, it is one of the major assets that a person has to pass on to his or her children. Although Medicaid regulations allow a person to qualify for Medicaid and keep their home, federal and state laws also require Medicaid to seek recovery against the home, once the person passes away, for the costs of the nursing home, medication, hospitalization, and any home-based
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services. These costs can greatly exceed the value of the home. Although the state allows you to keep the home, , the state may end up with the value of the home in the end. Here is how: In 1993, Congress passed a law which requires the states to try to recover the value of Medicaid payments made to recipients. This process is called estate recovery. Estate recovery does not take place until the recipient of the benefits dies; in the case of a married couple, it occurs after the death of both spouses. At that point, the law requires the State of Louisiana to attempt to recovery the benefits paid from the recipient's estate. In recent years, as the Louisiana State budget has gotten tighter, Louisiana has become more aggressive about their Estate Recovery Program. For that reason, you will need assistance from an attorney knowledgeable about the rules and regulations to determine whether there will be estate recovery and whether it can be avoided in your particular situation. Question: Is it true that under current Medicaid laws, parents cannot make gifts to their children once they are contemplating Medicaid or have entered a nursing home? Answer: No. In fact, a proper gifting program can be a great Medicaid planning technique. At the time an applicant applies for Medicaid, the state will "look back" five years to see if any gifts have been made. Any financial gifts, or transfers for less than fair market value, during the five-year look back period may cause a delay in an applicant's eligibility. Also, just because the state may ask about gifts made during the prior five years, does not mean that all of those gifts will be considered. Under the terms of a provision made effective February 8, 2006, the gifting rules have become far more complicated, and gifting is not as advantageous as it was before then. Gift giving can still be an effective Medicaid planning strategy under certain circumstances. You should consult with an attorney to see if this strategy is appropriate for you.
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Question: Is it true that $10,000 is the most an individual can give away if he or she is going to apply for Medicaid? Answer: No. The $10,000 figure (which recently went up to $13,000 per year) is a federal gift tax figure and is not relevant with respect to Medicaid. The maximum monetary figure Medicaid applicants need to concern themselves with is the "penalty divisor." The penalty divisor is a state assessed average cost for nursing home care by which the state assesses Medicaid penalties. The penalty divisor for Louisiana is currently $4,000, so a gift will cause a penalty of disqualification for one month for each $4,000 given away. Question: A Medicaid applicant's home is considered "exempt" under current Medicaid laws. Can an applicant give away his or her home without incurring penalties? Answer: No. Any assets which are given away are considered transfers for less than fair market value. If an applicant gives his or her home away, the state will assess a penalty based on the fair market value of the home at the time the property was transferred, unless the home is given away under an exemption to the transfer rules. So why is it said that the Medicaid laws are complicated? There are a number of steps which families can take to preserve their assets and qualify for benefits. These range from gifting strategies, to personal care contracts, to annuities, to reallocating portfolios. It is important to keep in mind that these laws are constantly changing and that the advice which was given to a friend or neighbor last year may no longer be relevant or even appropriate. It is also important to understand, however, that with expert advice you will be able to protect yourself and your loved ones while qualifying for all the benefits that the law allows.

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CHAPTER 12 What is Probate (Succession) and Do I Need to Avoid it?

One concern many people have is ensuring that their property will be passed to their loved ones in the event of their passing. There are essentially five ways people can transfer property to their loved ones upon post-mortem. It is important to choose your method of transfer very carefully based upon the age of those who will be receiving property, or the dynamics among family members who are receiving the property. Here are some examples of transfer methods. Leaving property titled solely in your name and not establishing a last will and testament If your property is titled only in your name at the time of your death, then your property will go through a process known as succession (probate). If you do not have a last will and testament, a court will order your property to be divided amongst your surviving relatives according to Louisiana State Law. The court, via the state law, provides for who will receive your property if you have done no planning; in essence, the Louisiana Legislature has written a will for you. In the case of a married couple, the wife will receive her share of the community property, meaning one half. The other half will pass to their children with a usufruct in favor of the surviving spouse. If you have no spouse, then the property will pass to your children; and if you have no children, then to the closest relatives you have. Obviously, most people want to have a greater say regarding who will receive their property. That is why you should take other estateplanning measures such as those described below.

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Establishing a last will and testament Establishing a last will and testament allows you to provide written instructions about how your property is to be divided upon your death. In your will, you can designate an executor of your estate who will administer the succession (probate estate). If you name your executor or executrix as independent, then the executor or executrix does not need as much court supervision, reducing the cost of probate. With the supervision of the court, your representative will then distribute your property as you have outlined in your will. A will can sometimes be advantageous since the court will be involved in the distribution of your estate. You will be assured your belongings go to whom you want and that family dynamics will not affect your wishes. If you have one or more minor children, it is critical to have a last will and testament so that you can designate whom you would like to be a guardian (a tutor) of your children. In addition, by setting up an irrevocable Medicaid protection trust in your will, you can protect your assets from the nursing home in the event that your surviving spouse becomes ill, while still providing for the surviving spouse. Adding a joint owner with the right of survivorship to your property or payable on death (POD) Adding a joint owner with the right of survivorship to your property (or a joint tenant in common, or a payable on death), will pass 100% of that property to the joint owner upon your death. Louisiana does not have this form of ownership. However, it is sometimes available to Louisiana residents if they own property outside of the state, such as a condo in Florida. In this situation, probate is not necessary. This is often the way spouses choose to title their property. Joint tenancy can, however, be a problem. For instance, if a child is added to your property and that child is later sued due to divorce or accident, etc., 100% of that property will be subject to a lawsuit and the parent may be left without a home or assets. Joint tenancy overrides any last will and testament that you have executed.

Adding Beneficiary Designations to Your Property Adding a beneficiary designation (payable on death [POD] or transfer on death [TOD]) to your personal property is another way to avoid probate. Again, 100% of your property passes to the person whom you have designated as the beneficiary. Unlike a joint owner however, a beneficiary has no access to your property until you have passed away, thus avoiding any problems with the cash flow of your assets by the beneficiary's creditors. Nevertheless, like joint tenancy, the beneficiary's designations still override any last will and testament you have executed. Establishing a Revocable/Irrevocable Trust during Your Lifetime A trust is an estate-planning document that allows the individual to direct another person (the trustee) to manage property during life and to distribute property upon passing according to the individual's specific wishes. Unlike a will, a trust is not probated. Proper estate planning is a must if you want to be sure your property will pass upon your death to your loved ones according to your wishes. For instance, if you have young children, it is crucial for you to have a will and trust in place because minor children cannot take title to property in their own name. Additionally, it is important to arrange for the care of your minor children after your death. It is critical to be sure that, whenever possible, the person who will be caring for your children will have access to the funds to properly care for them. In addition, some people are not emotionally equipped to handle sums of money that they receive outright, and it is common to see individuals who have received an inheritance to quickly spend it in a very short period of time. Proper estate planning can avoid this and make sure that everyone is protected and your life savings, no matter how large or small, is not squandered. Before taking any action to avoid probate or to establish a trust, you should consult an estate-planning attorney who can examine your specific situation and advise you accordingly.

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CHAPTER 13 What Steps Should You Take Now?

As you can tell from reading this book, planning for someone who has Alzheimer's disease can be complicated. Proper planning in advance can help alleviate many frustrations as the disease progresses. It is my desire, as an elder law attorney, to make this difficult process as easy as possible for you, so that you can concentrate on giving your loved one the care that he or she needs. The time to act is now. With proper planning, you will ensure that things are handled according to your wishes and that you have taken the best steps possible to protect your loved one and your family's financial security. When a loved one has Alzheimer's disease, you must do two things immediately: take action to protect the loved one's assets,and qualify them for all the government benefits they are entitled to as soon as possible. Imagine the peace of mind you will have when you stop reacting to your situation and start putting into place a positive action plan, which will allow you to protect yourself and your loved ones. Anyone who has ever lived near the Gulf of Mexico and experienced a storm knows that when you have a safe haven to head to during the storm, it makes it easier to go through. The worst possible situation in a storm is to be tossed around with no direction. It is always best to pick a port and head there, making the storm bearable. My best wishes to you that you find your port and head toward it.

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