Monthly Archives: September 2013

A stitch in time saves nine

By Patrice A. Putman, Maine elder law attorney

The old saying “A stitch in time saves nine.” makes a lot of sense. Unfortunately, too often, people don’t know that there may be a legal “stitch” needed. Below is a situation that I’ve seen. Luckily, if discovered and fixed early, a client can save a lot of time, money, and frustration.

Most married couples own their home as “Joint Tenants”. This means that when one spouse dies, the property automatically becomes owned entirely by the other spouse. Nothing needs to be done to accomplish the change in ownership. In order for this transfer of ownership to the surviving spouse to happen automatically, the deed into the spouses must expressly state the concept that the spouses own as “joint tenants” or that the surviving spouse is to automatically become the sole owner of the home.

It is also possible for a married couple to own their home jointly, but as “tenants-in-common”. The home will be owned by the spouses as tenants-in-common if the deed is not explicitly a “joint tenancy deed”. If the home is owned as tenants –in-common, the surviving spouse does not automatically end up with ownership of the entire home. Rather the half owned by the deceased spouse must go through probate and title passes according to the will of the deceased or through the laws of succession (if there is no will). The property must go through probate, a personal representative must be named and the property must then be deeded according to either the Will or intestate laws.

There are times when a new widow or widower who thought she/he owned the property as a joint tenant finds that she/he did not.

Here is a hypothetical: Husband and wife own property together. The deed says “I seller, give to you, husband and wife, a piece of property.” This deed is a tenancy in common deed, something which the spouses didn’t understand and didn’t intend. Husband dies. Wife goes to a lawyer to see if she needs to do anything with regard to probate. All the bank accounts were jointly owned (no probate needed), life insurance had a beneficiary listed (no probate needed), the IRA has a listed beneficiary (no probate needed), cars were owned jointly (no probate needed). Then the lawyer asks to see the deed, and sees that the deed is not a joint tenancy deed. Now a probate estate must be opened, heirs must be notified, if there is a Will, the original must be found and filed, probate and attorney fees must be paid and a new deed will need to be executed and recorded. If the Will says “all to my spouse” then, after the personal representative has been appointed, a new deed can transfer the deceased spouse’s share to the spouse. If there is no Will or if the Will leaves part of the estate to others, the widow who thought she owned her house entirely, may now own it partially with children, step-children or others. Either way, things just got a lot more expensive and complicated.

Here’s the simple solution: Go look at your deed(s). If your deed(s) say you own the property as “joint tenants” or if the deed is clear that the surviving owner is to be the sole owner, then you are joint tenants and when one of you dies, the property will be owned entirely by the other automatically. If your deed is not a joint tenancy deed, then you and your spouse own as tenants in common. Once you understand how you own the property, then you can decide whether it fits your needs, or whether you need to see an attorney to get advice on whether your deed fits your needs. If a fix is needed, it’s an easy fix while both of you are alive. It may be needlessly expensive and upsetting if you find out after your spouse has died that the form of ownership didn’t work to your best advantage. This is clearly a situation where a stitch in time saves nine. Go read your deed! Make sure it says exactly what you need it to say, so that it does exactly what you want it to do. If you are not sure, get help sooner rather than later!

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Beware This Very Expensive Medicare Detail

By Patrice A. Putman, Maine elder law attorney

Medicare rules and policies are always confusing but there are some rules that, over time, people tend to hear about. One of the Medicare policies that people tend to be familiar with is the one that basically says, if you have been an inpatient in the hospital for three or more days, Medicare will pay for Skilled Nursing Care for up to 100 days. This rule has recently been at the forefront of much news because of a settlement in the Jimmo v. Sebelius case. Prior to this settlement, Medicare would often deny payment for Skilled Nursing Care if the patient was not making “substantial improvement”. Now, since the Jimmo settlement, Medicare must pay for care during those 100 days if the care is needed to maintain or simply prevent deterioration in the patient’s clinical condition. Continued improvement is no longer necessary.

The Jimmo settlement is great for patient care, but there is another detail in the Medicare law that people should be keenly aware of. This has to do with those three days of “inpatient” hospital care. The unknown detail has to do with what is considered “inpatient” hospital care. For Medicare purposes, in determining what is considered an “inpatient” hospital stay, emergency room care and being in an “observation” status do not count as inpatient care. A patient can be held in “observation” status for multiple days, on a regular hospital unit, in a regular hospital bed without any clues that, for Medicare purposes, they are not considered an inpatient. Then, when that patient is later transferred to a Skilled Nursing Unit, Medicare will not cover their care. The Center for Medicare Advocacy states in its Summer 2013 Center News: “Hospitals stays that are classified as observation, no matter what types of services are provided and no matter how many days the patient remains hospitalized in a bed, are considered outpatient.”

Congress has put forward legislation that would require time spent in observation to be counted toward meeting Medicare’s three day requirement but its passage appears doubtful despite large bipartisan support and 90 co-signers, so this problem is not going away quickly.

What can you do? ASK!!! If you or a loved one has been admitted into a hospital and are likely to move to a Skilled Nursing Unit, speak to your doctor or the Nurse Manager of your hospital unit about whether you are classified as an “inpatient” or an “observation” patient. If you are told that you are an observation patient, ask your physician to review this status and explain to your doctor why it matters; they may not know. Once you know that you are considered an “inpatient”, ask that this be confirmed in your medical record. Not knowing or not speaking up can lead to a financial disaster when you assume your care at a Skilled Nursing Unit is covered (because you have been in the hospital for 3 or more days) and later find out that Medicare will not pay for that care.

The information provided here is for educational purposes only. It should not be construed as rendering legal advice or offering an answer to a specific legal problem.