Spouses who are turning full retirement age this year are the last group who can choose whether to take spousal benefits or to take benefits on their own record. The strategy, used by some couples to maximize their benefits, will not be available to people turning full retirement age after 2019. 
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The claiming strategy -- sometimes known as "Claim Now, Claim More Later" -- allows a higher-earning spouse to claim a spousal benefit at full retirement age by filing a restricted application for benefits. While receiving the spousal benefit, the higher-earning spouse’s regular retirement benefit continues to increase. Then at 70, the higher-earning spouse can claim the maximum amount of his or her retirement benefit and stop receiving the spousal benefit. To use this strategy, the lower-earning spouse must also be claiming benefits. Workers cannot claim spousal benefits unless their spouses are also claiming benefits. 

A 2015 budget law began phasing out the strategy. If you were 62 or older by the end of 2015, you are still able to choose which benefit you want at your full retirement age. You do not have to make the election in the year you turn full retirement age. If your spouse is still working, you can wait to collect benefits until your spouse begins collecting. For example, if your spouse does not begin collecting benefits until you are 68, you can wait to collect benefits and file a restricted application at age 68. However, when workers who were not 62 by the end of 2015 apply for spousal benefits, Social Security will assume it is also an application for benefits on the worker's record. The worker is eligible for the higher benefit, but he or she can't choose to take just the spousal benefits and allow his or her own benefits to keep increasing until age 70. 

The budget law’s phase-out of the claiming strategy does not apply to survivor's benefits. Surviving spouses will still be able to choose to take survivor's benefits first and then switch to retirement benefits later if the retirement benefit is larger.  

​Having a loved one with dementia can be scary, but if you add in a firearm, it can also get dangerous.  To prevent harm to both the individual with dementia and others, it is important to plan ahead for how to deal with any weapons. 

Research shows that 45 percent of all adults aged 65 years or older either own a gun or live in a household with someone who does. For someone with dementia, the risk for suicide increases, and firearms are the most common method of suicide among people with dementia. In addition, a person with dementia who has a gun may put family members or caregivers at risk if the person gets confused about their identities or the possibility of intruders. A 2018 Kaiser Health News investigation that looked at news reports, court records, hospital data and public death records since 2012 and found more than 100 cases in which people with dementia used guns to kill or injure themselves or others. 

The best thing to do is talk about the guns before they become an issue. When someone is first diagnosed with dementia, there should be a conversation about gun ownership similar to the conversation many health professionals have about driving and dementia. Framing the issue as a discussion about safety may help make it easier for the person with dementia to acknowledge a potential problem. A conversation about guns can also be part of a larger long-term care planning discussion with an elder law attorney, who can help families write up a gun agreement that sets forth who will determine when it is time to take the guns away and where the guns should go. Even if the gun owner doesn't remember the agreement when the time comes to put it to use, having a plan in place can be helpful. 

What to do with the guns themselves is a difficult question. One option is to lock the weapon or weapons in a safe and store the ammunition separately. Having the guns remain in the house--even if they are locked away--can be risky. Another option is to remove the weapons from the house altogether. However, in Massachusetts you need to have the proper firearm license to even remove the weapon from the house. Families should talk to an attorney and familiarize themselves with state and federal gun laws before giving away guns.

If a sale of the weapon turns out to be the best solution, we recently had a client sell their weapons to New England Ballistic Services.  President Steve Dahl made the process easy and ensured the safe transport of the weapons. 

The Internal Revenue Service (IRS) is increasing the amount taxpayers can deduct from their 2019 income as a result of buying long-term care insurance.
Premiums for "qualified" long-term care insurance policies (see explanation below) are tax deductible to the extent that they, along with other unreimbursed medical expenses (including Medicare premiums), exceed 7.5 percent of the insured's adjusted gross income.  (The 7.5 percent threshold is for the 2017 and 2018 tax years.  It is scheduled to revert to 10 percent in 2019.)
These premiums -- what the policyholder pays the insurance company to keep the policy in force -- are deductible for the taxpayer, his or her spouse and other dependents. (If you are self-employed, the tax-deductibility rules are a little different: You can take the amount of the premium as a deduction as long as you made a net profit; your medical expenses do not have to exceed a certain percentage of your income.)
However, there is a limit on how large a premium can be deducted, depending on the age of the taxpayer at the end of the year. Following are the deductibility limits for 2019. Any premium amounts for the year above these limits are not considered to be a medical expense.

Another change announced by the IRS involves benefits from per diem or indemnity policies, which pay a predetermined amount each day.  These benefits are not included in income except amounts that exceed the beneficiary's total qualified long-term care expenses or $370 per day, whichever is greater.
For these and other inflation adjustments from the IRS, click here.  

What Is a "Qualified" Policy?
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To be "qualified," policies issued on or after January 1, 1997, must adhere to certain requirements, among them that the policy must offer the consumer the options of "inflation" and "nonforfeiture" protection, although the consumer can choose not to purchase these features. Policies purchased before January 1, 1997, will be grandfathered and treated as "qualified" as long as they have been approved by the insurance commissioner of the state in which they are sold.

The median cost of a private nursing home room in the United States increased to $100,375 a year in 2018, up 3 percent from 2017, according to Genworth's Cost of Care survey, which the insurer conducts annually.  Massachusetts came in with a state median cost for a private room at a nursing home at $12,775 a month or $153,000 a year. 

At the same time, Genworth reports that the median cost of a semi-private room in a nursing home is $89,297, up 4 percent from 2017. While significant, the rise in prices is not quite as steep as the 5.5 percent and 4.4 percent gains, respectively, in 2017.

But the median cost of assisted living facilities jumped 6.7 percent, to $4,000 a month. The national median rate for the services of a home health aide is $22 an hour, and the cost of adult day care, which provides support services in a protective setting during part of the day, rose from $70 to $72 a day.

Alaska continues to be the costliest state for nursing home care by far, with the median annual cost of a private nursing home room totaling $330,873. Oklahoma again was found to be the most affordable state, with a median annual cost of a private room of $63,510.

The 2018 survey, conducted by CareScout for the fifteenth straight year, was based on responses from more than 15,500 nursing homes, assisted living facilities, adult day health facilities and home care providers.  Survey respondents were contacted by phone during May and June 2018.

As the survey indicates, nursing home care is growing ever more expensive. Contact us today to learn how you can protect some or all of your family's assets.
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For more on Genworth’s 2018 Cost of Care Survey, including costs for your state, click here.

A recent case involving basketball star Caldwell Jones demonstrates the danger in having only one spouse's name on a reverse mortgage. A federal appeals court has ruled that an insurance company may foreclose on a reverse mortgage after the death of the borrower, Mr. Jones, even though Mr. Jones’ widow is still living in the house. While there are protections in place for non-borrowing spouses, many spouses are still facing foreclosure and eviction.

A reverse mortgage allows homeowners to use the equity in their home to take out a loan, but borrowers must be 62 years or older to qualify for this type of mortgage. If one spouse is under age 62, the younger spouse has to be left off the loan in order for the couple to qualify for a reverse mortgage. Some lenders have actually encouraged couples to put only the older spouse on the mortgage because the couple could borrow more money that way. But couples often did this without realizing the potentially catastrophic implications. If only one spouse's name was on the mortgage and that spouse died, the surviving spouse would be required to either repay the loan in full or face eviction.

In order to protect non-borrowing spouses, the federal government revised its guidelines for reverse mortgages taken out after August 4, 2014 to allow spouses to stay in the house as long as they meet certain criteria, including proving ownership within 90 days of the borrowers death. In 2015, the federal government allowed lenders to defer foreclosure on a widow or widower and assign the mortgage to the federal government. Advocacy groups looking at reverse mortgage foreclosures have found that despite these new regulations, lenders are still foreclosing on non-borrowing spouses. Of the 591 non-borrowing spouses who have sought help to avoid foreclosure, only 317 received assistance.

These regulations did not help Mr. Jones' wife, Vanessa. Mr. Jones, who blocked more than 2,200 shots during his 17-year professional basketball career, obtained a reverse mortgage in 2014 on the Georgia home he lived in with his wife. The contract defined the "borrower" to be "Caldwell Jones, Jr., a married man." Ms. Jones did not put her name on the reverse mortgage because she was under age 62 at the time of the mortgage. Mr. Jones died later that year, and when Ms. Jones did not repay the loan, the insurer began foreclosure proceedings.

Ms. Jones sued the insurer in federal court to prevent the foreclosure, arguing that federal law prohibited the insurer from foreclosing on the house while she lived in it. Under a provision in federal law, the federal government "may not insure" a reverse mortgage unless the "homeowner" does not have to repay the loan until the homeowner either dies or sells the mortgaged property and defines "homeowner" to include the borrower’s spouse.

On appeal, the 11th Circuit Court of Appeals (Estate of Caldwell Jones, Jr. v. Live Well Financial (U.S. Ct. App., 11th Cir., No. 17-14677, Sept. 5, 2018)) ruled that the federal law in question only covers what the federal government can insure and does not govern the insurer's right to foreclose. The court agrees with Ms. Jones that the law is intended to safeguard widows and implies that the federal government should not have insured the loan in the first place, but finds that federal law does not cover the insurer's private right to demand immediate payment and pursue foreclosure.
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When purchasing a reverse mortgage, it is always safer to put both spouse's names on the mortgage. If one spouse is underage when the mortgage is originally taken out, that spouse can be added to the mortgage when he or she reaches age 65. If you have a reverse mortgage with only one spouse on it, contact us to find out the best way to protect the non-borrowing spouse. 

Increased dependency due to illness, disability or cognitive impairments can make seniors susceptible to financial abuse. Nest eggs accumulated over decades also often make seniors attractive targets for predators, whether the predator is an offshore bogus sweepstakes or a care provider who sees an opportunity to be paid more than an hourly wage.
 
Just as sunlight makes the best disinfectant, transparency provides the strongest abuse protection. If others are aware of the senior's finances, either possible predators will see that no opportunity exists to take advantage of the senior or the family members or professionals can step in to keep any fraud from going too far. Here are some steps seniors or their loved ones can take to prevent financial abuse.
 
1. Arrange for account oversight
 
Make sure that someone close to the senior has access to her accounts to be able to see if anything unusual is going on, for instance large checks being made out or larger-than-usual cash withdrawals from ATMs. The oversight can be through copies of monthly statements or online access to accounts.
 
2. Add a Power of Attorney to your accounts
 
When someone holding a power of attorney is added to your bank account, they have the ability to write checks, make investment decisions and take steps if necessary to protect the funds in the account.  And unlike a joint account, is does not give that person ownership of your assets, potentially exposing them to that person’s creditors. But make sure you only add the name of someone you really trust to the account because it can also be an avenue for financial abuse if the power of attorney holder becomes the perpetrator.
 
3. Use a revocable trust
 
Revocable trusts can be useful for a number of reasons. They include all of the benefits of joint accounts, with few of the drawbacks. Your revocable trust gives someone you trust access to your accounts in trust and the ability to step in seamlessly if you become disabled. Unlike a joint account, it does not give the trustee any ownership interest in the account. If, for instance, you had four children but named one as a co-owner of your joint accounts, at your death she would have the legal right to keep the funds rather than share them with her siblings. That would not be the case with a revocable trust.
 
4. Visit often
 
Nothing prevents financial abuse or stops it in its tracks better than frequent visits by loved ones. Either the potential perpetrator will see that he can't isolate the senior and take advantage of him or family members or friends will notice the abuse before it goes too far.
 
5. Get help paying bills
 
If someone helps you pay your bills, they will help you make sure that you're not letting anything slip through cracks or paying something that you shouldn't. They will be able to help you sort through your mail and determine what is important and what is not.
 
6. Use a limited credit card
 
Credit cards are now available that allow another person to monitor the activity of the cardholder and to limit both the amount he spends and where he can spend it. One of these is the True Link card.
 
7. Sign up for do not call registry
 
It is quite easy to register your telephone number with the Federal Trade Commission's Do Not Call Registry either online at www.donotcall.gov or by calling 888.382.1222. While this may not stop someone intent on defrauding a senior, it should help reduce calls from salespeople.
 
8. Sign up for Nomorobo
 
You can sign up for Nomorobo to block robo calls. Unfortunately, it does not work with all telephone providers, including Verizon.
 
9. Consult with an elder law attorney
 
An elder law attorney can help set up a revocable trust and durable power of attorney to assist with financial management, advise on the best protective steps to take in each situation and provide additional oversight to discourage financial abuse.
 
10. Opt out of mail solicitations
 
At www.dmachoice.org the Direct Marketing Association permits you to limit the amount of catalogs, credit card offers and other direct mail pieces you or a loved one receives. You may well ask why the Direct Marketing Association does this. The answer is that they don't want to waste their print and mail costs sending to consumers who have no interest in the product being marketed.
 
While there's no foolproof measure you can take that will both prevent financial fraud and leave you or your loved one with at least some independence and control over his or her finances, the steps described above can make the world a safer financial place. Just remember what was said at the beginning: isolation is a breeding ground for financial abuse (as well as depression and other ills). Social involvement is the best protection.

As long-term care insurance premiums rise and fewer companies offer policies, alternatives to traditional long-term care insurance policies are springing up.  An increasingly popular hybrid product combines life insurance with long-term care coverage and offers buyers solutions to a number of problems that have kept people from buying traditional long-term care policies.
 
The life insurance hybrid policies are often available to individuals who would not qualify for conventional long-term care insurance due to preexisting conditions.  In addition, the long-term care benefit is not a “use it or lose it” proposition.  If the benefit is not used, or is only partially used, the unused portion is paid out to an individual’s heirs in a death benefit.  Finally, one reason people are wary of traditional long-term care insurance is fear of hefty premium increases down the road.  Extraordinary premium increases are not a big factor with the life insurance hybrid products.
 
How They Work
 
Hybrid life insurance products add a long-term care “rider” to a permanent life insurance policy (whole life or universal life products, not term life).  Policyholders typically pay a lump-sum premium up front or a guaranteed set of premiums for a prescribed period of time.  If the long-term care feature is included, it allows the insured to receive a tax-free advance on her life insurance death benefit to pay for long-term care while she is still alive.  The insurance benefit kicks in when the policyholder can't perform two of the six "activities of daily living." Once a doctor certifies that the person is eligible, the insured can start to accelerate her death benefit to pay a monthly amount that covers her long-term care costs.
 
For example, an individual with a life insurance policy with a face amount of $100,000 who wishes to accelerate the death benefit to pay for long-term care might receive either 2 percent or 4 percent of the face amount each month.  If the rider is for 4 percent a month, the policy will accelerate $4,000 a month until the benefit is exhausted, which would be 25 months.
 
Importantly, most of these policies also have an “extension-of-benefit” rider, which is an option to continue paying the monthly benefit even after the base amount has been exhausted.  These riders can continue paying for another one or two times whatever the length of time would have been without the extension.  For example, in the example above an extension-of-benefit rider might pay $4,000 a month for an additional 25 months, and some of these riders even have a two-times kicker and would pay for another 50 months.
 
All this long-term care coverage comes at a cost, of course: the accelerated death benefit adds between 3 percent and 15 percent to the original standalone life insurance premium, while extending the benefits as in the example above usually at least doubles that.
 
The long-term care benefit can be used to cover any level of care, including home care, although company policies differ and some may exclude mental conditions, which can be common among senior citizens.  In most cases, the beneficiary gets a monthly check rather than submitting bills for reimbursement.  Any premium increase in the hybrid products would not be on the whole premium but only on the portion for long-term care.
 
One very attractive benefit to policyholders is the possibility that heirs will receive the portion of the death benefit that is not consumed by long-term care costs.   For example, if the policyholder uses only $50,000 of a $300,000 long-term care benefit before death that she paid for with a $100,000 premium, her heirs would get $250,000.
 
On the other hand, if the same policyholder decides 10 years down the road that she doesn’t want the product anymore, she’d get back the $100,000 premium plus accrued interest.
 
Some Hidden Costs
 
However, it should be noted that insurers are under no obligation to pay prevailing interest rates, so when rates start rising, as they inevitably will, companies could keep returns level and pocket the difference.  Holders of these hybrid products may be avoiding the kind of hefty premium increases that have become common in the conventional long-term care insurance market, but if their insurer pays interest below the prevailing rates, the lost interest could effectively equal a premium increase.  And in today’s low interest rate environment, a 1 percent to 3 percent rate of return would likely be eroded by a policy’s cost-of-insurance charges, according to financial planner Michael Kitces writing on his blog, Nerd’s Eye View. Some policies provide no rate of return, just a death benefit and long-term care benefit, Kitces says.
 
One of the leading life insurance hybrid products is called MoneyGuard, offered by Lincoln Financial. Nationwide also sells a long-term care rider, and the American Armed Forces Mutual Aid Association reportedly offers this option in all the permanent life insurance policies it sells.
 
In determining whether to write coverage for a potential client, life insurers offering these hybrid products typically evaluate the risk in the same way they do for a conventional life insurance policy, with some additional questions to review the long-term care risk.  The evaluation is generally more basic than with traditional long-term care insurance and may not even involve a medical exam.
 
There are downsides, of course.  It’s possible to zero out your funds, leaving nothing to your heirs, although some policies will pay out a small amount to your loved ones when you die.  Also, many of these hybrid plans will charge a surrender fee if the money is accessed before a certain number of years.
 
A hybrid product can work well as an estate planning tool for people in their 60s, 70s or even 80s who have some cash on hand want to avoid taxes and pass it on to their children but protect themselves in the event they need long-term care.  The person may have money parked in an investment, money market account, or certificate of deposit and not earning much return.  Shifting it to a life insurance benefit can be a smart tax play.  The funds in the life policy are growing with tax-free interest and if the client needs to tap the long-term care benefit, the accelerated payments come out tax-free.

Next Steps

As attorneys we do not sell financial or insurance products but help clients decide whether they are a good fit for their situation and can refer clients to professional advisers who are licensed to sell these products.

​Although a nursing home cannot require a child to be personally liable for their parent's nursing home bill, there are circumstances in which children can end up having to pay. This is a major reason why it is important to read any admission agreements carefully before signing.
 
Federal regulations prevent a nursing home from requiring a third party to be personally liable as a condition of admission. However, children of nursing home residents often sign the nursing home admission agreement as the "responsible party." This is a confusing term and it isn't always clear from the contract what it means.
 
Typically, the responsible party is agreeing to do everything in his or her power to make sure that the resident pays the nursing home from the resident's funds. If the resident runs out of funds, the responsible party may be required to apply for MassHealth on the resident's behalf. If the responsible party doesn't follow through on applying for MassHealth or provide the state with all the information needed to determine MassHealth eligibility, the nursing home may sue the responsible party for breach of contract. In addition, if a responsible party misuses a resident's funds instead of paying the resident's bill, the nursing home may also sue the responsible party. In both these circumstances, the responsible party may end up having to pay the nursing home out of his or her own funds.
 
In a case in New York, a son signed an admission agreement for his mother as the responsible party. After the mother died, the nursing home sued the son for breach of contract, arguing that he failed to apply for Medicaid or use his mother's money to pay the nursing home and that he fraudulently transferred her money to himself. The court ruled that the son could be liable for breach of contract even though the admission agreement did not require the son to use his own funds to pay the nursing home. (Jewish Home Lifecare v. Ast, N.Y. Sup. Ct., New York Cty., No. 161001/14, July 17, 2015).
 
Although it is against the law to require a child to sign an admission agreement as the person who guarantees payment, it is important to read the contract carefully because some nursing homes still have language in their contracts that violates the regulations. If possible, consult with an attorney before signing an admission agreement.

​John Oliver recently highlighted problems with the guardianship system on his HBO show, Last Week Tonight with John Oliver. The comedian provided a scary and funny explanation of how guardianship works, ending with a public service announcement by William Shatner, Lily Tomlin and others explaining steps you can take to avoid the guardianship.
 
The show focuses on the abuses of a professional guardian in Las Vegas, April Parks. She is clearly at the far end of guardianship exploitation and is currently facing prosecution on more than 200 charges. But Oliver does a good job of explaining how guardianship takes away rights without providing oversight of the people appointed to handle personal and financial decisions for people who can no longer make decisions for themselves.
 
He explains how courts do not have the resources necessary to provide proper oversight, reporting that only 12 states certify professional guardians. In addition, according to an investigation by the Government Accountability Office, states don't even do credit or criminal background checks on candidates for guardianship.
 
Nevertheless, the reality is that guardianship and conservatorship actually work in most cases. Family members seek the legal authority they need to make personal, financial and legal decisions for loved ones who have lost the capacity to do so for themselves. In many cases, these non-professional guardians don't follow through with the court reporting required by law, not because they have anything to hide but because they don't know that they have the obligation or don't know how to provide the reporting. More robust follow up by the probate court could seek to enforce the reporting rules, but also could result in much more red tape without much more protection for the people under guardianship or conservatorship.
 
In any event, the best approach is to avoid the need for guardianship and conservatorship by putting durable powers of attorney and health care proxies in place ahead of time when you can choose who you would like to make decisions for you when necessary. Even if you're not at risk of exploitation because your children or grandchildren would step in, the need for court intervention causes otherwise unnecessary expense and delay.
 
This is what estate planners counsel their clients all the time. But William Shatner, Lily Tomlin, Rita Moreno, Fred Willard, and Cloris Leachman do it so much better. With some side discussions about hippos, they recommend executing a durable power of attorney and health care proxy naming someone you trust to make decisions for you if you can't for yourself. They all agree that the person they most trust for this role is Tom Hanks.
 
To watch the clip from the show, click here. (Warning: The clip contains occasional profanity.)

New rules have been put in place to protect seniors with brokerage accounts from financial scams that could drain the accounts before anyone notices.
 
As the population ages, elder financial abuse is a mounting problem. Vulnerable seniors can become victims of scammers who convince them to empty their investment accounts. According to the Financial Industry Regulatory Authority (FINRA), the organization that regulates firms and professionals selling securities in the United States, its Securities Helpline for Seniors has received more than 12,000 calls and recovered more than $5.3 million for seniors whose investment funds were illegally or inappropriately distributed since the helpline opened in April 2015.
 
Now, FINRA has issued two new rules designed to help investment brokers or advisors better protect seniors’ accounts from financial exploitation. The rules, which went into effect in February 2018, apply when opening a brokerage account or updating information for an existing account.
 
First, the broker or investment advisor must ask the investor for the name of a trusted contact person. This is someone the broker can contact if there are questions about the account. The trusted contact is intended to be a resource for the broker to address possible financial exploitation and to obtain the customer’s current contact information and health status or learn about any legal guardian, executor, trustee or holder of a power of attorney.
 
The second rule allows a broker to place a temporary hold on disbursements from an account if those disbursements seem suspicious. This rule applies to accounts belonging to investors age 65 and older or investors with mental or physical impairments that the broker reasonably believes make it difficult for the investor to protect his or her own financial interests. Before disbursing the funds, the brokerage firm will be able to investigate the disbursement by reaching out to the investor, the trusted contact, or law enforcement.
 
To read more about the new rules, click here.