News Flashes from the Pennsylvania Elder Law Institute
Every year for the past 11 years in July, I pack my belongings and trek to Harrisburg for what I refer to as “Elder Law Boot Camp, ” joining hundreds of lawyers for two days to brush up on hot new changes in elder law and to network with the lawyers who comprise the Pennnsylvania statewide elder law bar. This year was no exception and, on July 24 and 25, I ventured to the Pennsylvania Bar Institute’s 11th Annual Elder Law Institute at the Harrisburg Hilton.
For two days we immerse ourselves in every conceivable Medicare, Medicaid, estate and elder law topic attending a smorgasbord of seminars and sharing stories from our practices. It is best not to miss the first session of the first day at 8:30 am. That is when seasoned elder law attorneys, Jeffrey Marshall of Williamsport and Jersey Shore, Pennsylvania and Robert Clofine, of York highlight the “Year In Review” as to new legislation, regulations, and cases. The session provides a flavor for the rest to come. The best features of the Institute are the flashes of insight, the seminars, the sharing of information and solutions, and the camaraderie.
We used to cap off the first day with a dinner followed by a “tournament” of miniature golf, mocking the practice, I suppose, of the organized bar. Now we continue talking into the night and go to dinner in smaller groups.
This year was especially helpful and Sally Schoffstall, an Oreland, Pennsylvania attorney and one of the organizers, may have identified the reason why in a final comment to me. “This year we have answers.”
Sure, we do not have all the answers but, finally, after three continuous years of upheaval and change in laws and regulations beginning with Pennsylvania’s Act 42 and Act 43 in 2005 and the Federal Deficit Reduction Act in 2006 which only began to be implemented in Pennsylvania in 2007, this year we have a stronger grasp of where the laws are going and can use that information to advise clients.
Here are some of the most significant news flashes, trends, and predictions for readers in this volatile field.
Family Agreements. Family agreements will be part of the wave of the future. I have written about these in previous columns. See, for instance, www.collitonlaw.com/07/080607.htm. The clouds have lifted and family agreements, if they are in writing, if they are entered into before services are provided or costs are incurred, and if the amounts are reasonable, are becoming a regular accepted means whereby parents may pay adult children or others to assist them. “Pay as you go” written agreements are receiving the widest acceptance. Lump sum agreements may carry more risk. Families should not venture into written family agreements alone and should seek professional assistance to assure that they are doing this right including consideration of the tax and later Medicaid issues.
Immediate Annuities. Discussion strongly implied that immediate annuities will occupy a larger role in elder law practices. Immediate annuities must be differentiated from deferred, variable or equity indexed annuities where money can and usually is tied up for years and owners must pay surrender penalties during the first several years of the contract to take their own money back. With an immediate annuity, there is an immediate monthly payout. Before the Deficit Reduction Act, immediate annuities had an uncertain status. Now, they are being used more regularly to provide cash streams even where assets cannot be protected. There are specific defined criteria more detailed than can be covered here.
Assisted Living Update. Assisted Living facilities are being seen by government as a way to house many residents of the sort currently residing in nursing homes. This has both positive and negative aspects. Assisted living may have more of a long term “hotel” feel to it but employees may experience difficulty while trying to safely maintain seriously ill residents. The trade off contained in Act 56 of 2007 is referred to as “informed consent” or “negotiated risk.” which could waive a facility’s liability. There is currently no obligation for the government to pay assisted living expense under the Medicaid program.
Other issues discussed included use of Irrevocable Grantor Trusts for both tax saving and Medicaid purposes, expansion of the Medicaid At-Home Waiver Program, Pennsylvania’s transitioning to home program and concerns with the program specific to Pennsylvania, Pennsylvania’s Long Term Care Insurance Partnership Program, claims against adult children under Act 43 of 2005 and defenses, update on Medicare D, PACE and prescription drug coverage. We were busy.
About the Author Janet Colliton
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.