ELDER LAW GLOSSARY

Aid and Attendance (A&A)

A&A benefits are those provided when a claimant requires the aid of another person in order to perform personal functions required in everyday living, such as bathing feeding , dressing , attending to the wants of nature , adjusting prosthetic devices, or protecting himself/herself from the hazards of his/her daily living environment. Entitlement to A&A benefits also may be provided when a claimant is bedridden, a patient in a nursing home due to mental or physical incapacity or when blind.

Annuity

An insurance-based contract that provides future payments at regular intervals in exchange for a lump-sum premium paid when the annuity is purchased. It's a strategy for lifetime income in retirement.

Bond

A written document in which the issuer formally recognizes an obligation to pay money in the event he or she does not properly perform his or her duties. In order to be appointed a guardian, a court will frequently require that a guardian acquire a form of insurance, known as a surety bond, to protect the assets of the incapacitated in the event of financial mismanagement or theft .

Care Management

All-encompassing management provided by a care manager on behalf of a client. The client and the care manager discuss the needs of the client and the extent to which the care manager is able to intervene on behalf of the client . This can include areas of financial assistance such as bill paying, medical assistance , such as escorting a patient to a doctor's appointment or setting up in-home health care, liaison between distant family and a client, or acting as advocate on behalf of a client who resides in a living facility.

Community Resources

Any agency, company, facility, or service in the community that provides assistance in supported independence to those at risk.

Community Spouse (CS)

The spouse of an institutionalized individual residing in a community or assisted living facility.

Community Spouse Resource Allowance (CSRA)

Medicaid Regulations provide that a Community Spouse is entitled to retain a portion of the couple's assets. This is determined by dividing the combined assets of the husband and wife as they existed on the snapshot date, including joint assets and dividing by two. However, there is a floor of $21,912 and a ceiling of $109, 560.

Continuum

Continuity and consistency of care information provided to family, professionals, and community resources.

Countable Resources

All assets owned by an institutionalized individual (and his or her Community Spouse). These countable resources include but are not limited to bank and brokerage accounts; CD's ; certain real property ; cash value of life insurance policies with a face value in excess of $1,500 ; IRA's; stocks; bonds, etc.

d(4)(a) Supplemental or Special Needs Trust.

Congress authorized the creation of d(4)(a) supplemental or special needs trusts with the assets of a disabled person. The assets in a d(4)(a) trust are not considered countable resources for determining the beneficiary's SSI or Medicaid eligibility. The trust must be: (1) irrevocable, (2) established for a disabled person under age 65, (3) created by the disabled person's parents, grandparents, guardian, or by a court. At the death of the disabled person the trust must repay to the state any assets remaining up to the amount paid under the Medicaid program on behalf of the disabled person.

d(4)(c) Supplemental or Special Needs ("Pooled") Trust

Congress authorized the creation of d(4)(c) supplemental or special needs trusts with the assets of a disabled person. The assets in a d(4)(c) trust are not considered countable resources for determining the beneficiary's SSI or Medicaid eligibility. The trust must be: (1) created by and managed by a nonprofit organization , (2) maintained in a separate account for each beneficiary , (3) created by the disabled person, the disabled person's parents, grandparents, guardian, or by a court. At the death of the disabled person the trust must repay to the state any assets remaining up to the amount paid under the Medicaid program on behalf of the disabled person, or leave the assets in the trust for the benefit of other disabled persons

Durable Power of Attorney

A durable power of attorney is an instrument by which a person, known as the principal, designates another person, known as the agent, to manage the principal's assets or affairs. Unlike a common law power of attorney, the durable power of attorney does not terminate if the principal becomes incapacitated or disabled. A durable power of attorney can be effective upon execution ("immediately effective") or effective upon the principal's incapacity or other event ("springing").

Disability Pension

A disability pension is a public benefit provided those unable to earn a livelihood because of permanent and total disability. Under Veteran's Administration rules, it is restricted to veterans with wartime service.

Fiduciary

A fiduciary is a person who manages the assets or affairs of another person; a general term used to refer to executors, administrators, trustees, guardians, and agents. A fiduciary is required to follow the instructions contained in the instrument that appointed the fiduciary and the various laws that pertain to fiduciaries , such as the Prudent Investor Act and the Uniform Principal and Income Act. A fiduciary owes certain duties to the beneficiary. These duties include the duty of loyalty, to use due care, to avoid conflicts of interest, and to provide information. A fiduciary who violates the instructions in the governing instrument, applicable laws, or fiduciary duties is liable to the beneficiary for any damages that the beneficiary suffers as a result of the violation.

ADL's (Activities of Daily Living)

Basic Activities of Daily Living (ADLs ) consist of self-care tasks, including:

• Bathing and showering (washing the body)

• Dressing

• Self-feeding (not including chewing or swallowing)

• Functional mobility (moving from one place to another while performing activities)

• Personal hygiene and grooming (including brushing/combing/styling hair)

• Toilet hygiene (completing the act of urinating/defecating)

Guardian ad litem

When a petition for guardianship is filed, the court must feel satisfied that the proposed incapacitated person is indeed mentally incapacitated and that the proposed guardian is the individual best suited to act on behalf of the proposed incapacitated. As such, an attorney is always appointed as Guardian ad litem, to represent the proposed incapacitated and advocate their interests.

Guardian

A person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety , habilitation , education, therapeutic treatment, and residence .

Guardianship

A guardianship is a protective arrangement covering the personal and medical well- being of a minor or a mentally incapacitated adult.

Hearing Date

In order to establish a guardianship, pleadings are filed with the Clerk of Superior

Court in the county which the adult incapacitated person resides. The hearing date is the day on which the court will hold a hearing to establish a guardianship. All interested parties are sent a notice of the hearing.

Home Health Care

In-home assistance with ADLs; in-home visits by a nurse, and/or physical therapists.

Housebound

Entitlement to Housebound benefits exists when the claimant is permanently and substantially confined to his/her immediate premises due to medical disability.

Incapacitated

An individual whose personal, medical and financial decisions are made by a third party, namely a guardian. In the case of a minor, these decisions must be made by a guardian because the minor has not yet attained the age of majority (18). In the case of an adult, these decisions are made because the individual was either born with a developmental disability or became mentally incapacitated after becoming an adult.

In kind Support and Maintenance

In kind Support and Maintenance (ISM) is food, clothing and shelter furnished by a trust. ISM payments do affect the amount of any SSI payments.

Institutionalized spouse (IS)

A spouse who will be residing in a medical institution. (See also, Community Spouse)

Lookback

For all transfers of assets made prior to February 8, 2006, federal law provides for a 36-month transfers to individuals and a 60-month lookback for transfer s to trusts. For all transfers made after February 8, 2006, Federal Law provides for a 60-month lookback. This means that when an application is made for Medicaid, applicants will be asked if there have been any transfers of assets made within the previous 60 months. Any such transfers must be disclosed to Medicaid. Failure to do so constitutes Medicaid Fraud which is a criminal offense.

Medicaid

Medicaid is a government medical assistance program that pays for medical benefits. It is a 'means tested ' program with income and asset limits for purposes of determining Medicaid eligibility.

Medical Power of Attorney

See Advance Medical Directive , above .

Minimum Monthly Maintenance Needs Allowance (MMMNA)

A Community Spouse is entitled to a monthly income of $1,838 .75. To the extent that the spouse's monthly income is less than this amount, a supplement can be obtained from the Institutionalized Spouse's income.

Non-Countable Resources

Certain assets are non-countable. For example, a principal residence is non-countable so long as it is occupied by the Community Spouse or certain other persons. Other non-countable assets include one automobile; household and personal effects; wedding ring and engagement ring; medical equipment needed by an institutionalized person or a member of his/her house-hold, irrevocable pre-paid funerals, and inaccessible assets.

Nursing Home

A privately operated establishment providing rehabilitation or skilled nursing care for persons who are unable to care for themselves properly.

Pension

A pension is a needs-based benefit paid to a veteran because of permanent and total non-service-connected (NSC) disability, OR to a surviving spouse or child because of a wartime veteran's NSC death.

Snapshot date

A snapshot of the couple's assets is taken as of the first day of the first month of continuous institutionalization for a period of more than 30 days or the date of the Medicaid application, whichever occurs first.

Special Needs

Special needs are those needs of the beneficiary over and above food, clothing and shelter. Examples of special needs are non-refundable airline tickets, a stereo system, television, medical insurance, telephone bills, newspaper subscriptions, furniture, services of a care manager, vacations, travel expenses of relatives, movies, tax payments , medical treatment for which public funds are unavailable , the difference between private and semi - private room rates in an institution, handicap van , school tuition, books and supplies, and health and life insurance premiums.

Spendthrift Trust

A spendthrift trust is a trust that is designed to protect a trust assets from a beneficiary's creditors.

Supplemental Security Income (SSI)

SSI is an income maintenance program funded by the federal government and administered by the Social Security Administration. Some states provide a small supplement to the SSI benefit. SSI is a means-tested program which imposes limits on the income and assets of an SSI recipient for eligibility purposes.

Supplemental or Special Needs Trust (SNT)

An SNT is a trust created for the benefit of a beneficiary who receives SSI or Medicaid. The trust is drafted to provide discretionary benefits to the beneficiary, but to avoid becoming a countable resource that would negatively affect a beneficiary's SSI or Medicaid eligibility.

Third Party Supplemental or Special Needs Trust (SNT)

A third party supplemental or special needs trust is an SNT created for the benefit of a disabled person with the assets of someone other than the disabled person. The trust is drafted to provide discretionary benefits to the beneficiary, but to avoid becoming a countable resource that would negatively affect a beneficiary's SSI or Medicaid eligibility.

Transfer Penalty

A transfer of assets can result in a penalty for Medicaid eligibility. The penalty is a waiting period that is calculated by taking the average nursing home cost for a particular region (determined by the Department of Social Services) and dividing that number into the amount transferred.

Trust

A trust is a legal document under which assets are held and administered for the benefit of a beneficiary. A trust document spells out the terms and conditions of distribution and the terms by which the trust is to be administered.

Trustee

A trustee is the person who administers a trust in accordance with its terms. The selection of the right person or entity to serve as the trustee is critical. The trustee is responsible for investing the funds, accounting for income and the payment of expenses, and for making distributions in accordance with the terms of the trust document. If a trustee mismanages a Supplemental Needs Trust, the beneficiary's public benefits may be reduced or terminated.

Trust Protector

A trust protector is a person designated by the grantor of a trust to protect the interest of the beneficiary. A trust protector oversees the trustee and can be given the power to remove and replace the trustee if the administration of the trust is not satisfactory.

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