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Jewish World Review Oct. 15, 2003 / 19 Tishrei, 5764

Jan L. Warner & Jan Collins

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Consumer Reports


Can Mom be booted for not signing?; Can dad deduct nursing home costs as medical expenses to offset the income taxes so that his money will last longer?


http://www.NewsAndOpinion.com | Q: My 78-year-old mother has Parkinson's disease. She signed many papers when she entered a nursing home three months ago. Although I was there with her, it was an emotional time and I did not pay attention to anything other than what services she would receive for the $5,300 monthly fee. Mom was getting along fine until she called me very upset because the director wanted her to sign yet another paper. When I went by his office, he explained that the facility had implemented an arbitration procedure to keep disputes with residents out of the court system.

The way I read it, if she had signed it, my mother would waive all of her rights if she were to be injured. I took it to my lawyer, who advised her not to sign. The administrator has now threatened to discharge her if she doesn't sign. Is there anything I can do, short of moving her? She really likes the place.

A: For many years, the securities industry has successfully included arbitration provisions in their standard customer account agreements, much to the chagrin of disgruntled customers who don't read what they signed. Therefore, an overwhelming majority of broker disputes are decided under arbitration rules set by the securities industry. The U.S. Supreme Court has decided that these clauses are enforceable even though many people don't pay attention to the fine print, don't realize that they are waiving important rights, and don't have the authority to "opt out" of the provisions.

Due to rising malpractice insurance rates, a growing number of nursing homes and assisted-living facilities are including arbitration clauses in their admission agreements to try to resolve disputes and claims without going to court. Some contracts we have seen make arbitration mandatory, while others allow the resident to opt out and don't base admission on acceptance of the arbitration provisions. Some state courts have approved arbitration agreements that were signed, regardless of whether the person signing read and understood what was being signed.

Federal law governs the reasons for which a resident can be discharged from a nursing home, and — the last time we looked — not signing an arbitration agreement after the fact is not one of them. We don't believe that your mother can be discharged for not signing what should have been presented to her at the time of admission so that she could have made a choice. Since the nursing home admission process isn't protected by federal law, only time will tell about the validity of these clauses.

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A word to the wise: Folks who enter nursing homes and assisted-living facilities are mentally and/or physically vulnerable. We suggest that every document presented for signature be read and understood before being signed. Make sure to ask questions about what you don't understand and don't give up important rights and protections without advice from a knowledgeable lawyer in your community.

Q: My father is a resident of an assisted-living facility. He doesn't have long-term care insurance, so his care will be paid for by money in his IRA. Can he deduct these costs as medical expenses to offset the income taxes so that his money will last longer?

A: Your father can deduct un-reimbursed payments for long-term care as medical expenses to the extent that these expenses exceed 7.5 percent of his adjusted gross income. The IRS guidelines basically require that your father itemize his deductions, that the expenses be "qualified long-term care services," and that your father be "chronically ill." To be "chronically ill," a licensed health care practitioner must certify either: 1) that your father is unable to perform at least two activities of daily life (ADLs) without substantial assistance from another person because of functional loss, or 2) that your father has a "severe cognitive impairment," such as Alzheimer's disease, and requires "substantial supervision."

Because there is much more to know, you can visit www.nextsteps.net for free information about the deductibility of these non-covered, long-term care expenses.

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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.

Up



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Read admission-package 'agreements'; booting a patient once Medicaid kicks in
Can the kids block our cash flow?; childless couple agonizes over whether to use
powers of attorney or a living trust to manage our assets

Control your assets from the grave
Slacker son will blow his fortune; lawyer's role in "estate-planning"
Mom remarried and spent my inheritance; doesn't want daughter-in-law to receive anything from estate
Can we stop our brother from swindling us?
What Gifting Will Disqualify You From Medicaid
The 'magic' language for a power of attorney agreement
Is care insurance a healthy choice?
Is there protection against Medicaid costs?
Long-term care insurance comes up short
HIPAA -- too much privacy?; nursing home doc could care less
Private pay nursing home residents pay more
Separated families should use care managers
What Makes Up a Caregiving Team?
Who is the client, parents or children?:

© 2003, Jan Warner