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10 questions to ask before hiring an elder care attorney

Editor’s Note: Journalist Philip Moeller is here to provide the answers you need on aging and retirement. His weekly column, “Ask Phil,” aims to help older Americans and their families by answering their health care and financial questions. Phil is the author of “Get What’s Yours for Medicare,” and co-author of “Get What’s Yours: The Revised Secrets to Maxing Out Your Social Security.” Send your questions to Phil; he will answer as many as he can.

I receive many questions about the needs of frail parents and other loved ones. Such folks often live on scant resources and don’t have family members nearby who can help. They may have some cognitive issues as well, but even if they don’t, trying to figure out how to deal with Medicare and Medicaid coverage and eligibility challenges can be overwhelming.

I often refer such questioners to a qualified elder care attorney who practices in their community. The National Academy of Elder Law Attorneys is a good referral source. Twyla Sketchley, an elder care attorney in Florida and head of that state’s NAELA chapter, recently shared this list of questions to ask before retaining an attorney:

  1. How much of the lawyer’s practice is elder law?
  2. How long has the lawyer been practicing elder law?
  3. How much of the lawyer’s elder law practice is handling types of cases like yours?
  4. When was the last time the lawyer handled a case like yours?
  5. Will the lawyer you meet with handle your case or will it be assigned to another lawyer?
  6. Is the lawyer certified as an expert either by their state bar association or a national bar association?
  7. Has the lawyer ever been disciplined by their state bar association? If so, when and what for?
  8. What training do the law firm’s paralegals have who will be assigned to your case?
  9. What are the lawyer’s fees? Flat rate? Hourly? Mixed? Contingent?
  10. Does the lawyer have written fee agreements and firm policies regarding telephone, email, meetings, after hours contact, and the like?

If an attorney fails to provide solid answers to these questions, politely end the conversation and keep looking.

Here are this week’s reader questions:

Abby – Fla.: I am helping my parents research their retirement and their medical care. They are still working but plan to retire and move to the Philippines. They are now American citizens and will obtain dual citizenship. What is your advice about the steps they should take? My parents are overwhelmed, and I am trying my best to help them in any way I can.

Phil Moeller: Can I introduce you to my kids? Maybe some of your admirable concerns about your parents’ well-being will be a good influence! Seriously, developing an informed strategy for their care hinges on several variables that you may know, but I certainly don’t.

How often will they come back to the U.S.? Do they plan to come back to the states regularly, and would they intend to see their normal doctors for maintenance visits when they do?

How is their health, and, in particular, will they need medical care they can’t get or can’t afford in the Philippines?

What do their financial resources look like? Can they afford to have Medicare for their U.S. visits and local insurance for when they’re in the Philippines?

How often do they plan to travel to other locations outside the U.S., and will they need or want emergency travel insurance when they do?

Here’s a piece I wrote last spring reviewing the major questions about Medicare for people living outside the U.S.

Anonymous – Mass.: My mom is 79, collects Social Security, and still works. My dad died this week at the age of 79. Does his Social Security stop now or is my mom entitled to it? Because she has not retired she thinks she is not eligible.

Phil Moeller: I’m sorry to hear that your dad passed away.

Your mom is entitled to the larger of her own Social Security retirement or your dad’s, which she would collect as a survivor benefit. She can’t collect both, but just an amount that roughly equals the larger of the two.

Uriel – Ecuador: I practice alternative medicine and have not been to a doctor or hospital in 35 years. I realize that I don’t have to sign up for Medicare when I turn 65, and understand that I might face late-enrollment penalties should I later decide that I need it. However, my latest bank statement shows that Medicare premiums are being taken out of my Social Security payments! How can this happen without my knowledge, and what the heck can I do about it?

Phil Moeller: Social Security, which handles Medicare enrollments, often enrolls people in Part B if they are taking Social Security and turn 65. While this may be a big problem for folks like you, I can assure you that many, many more people do not realize they need Medicare at 65, and are helped by having insurance when they need it!

You can disenroll from Part B and should be able to get your past due premiums credited back to you through a one-time boost in your Social Security payment. Just be persistent! Here are instructions for terminating Part B, and here’s the form you will need. Good luck!

Jean – Mo.: Thank you for your helpful article about how signing up for Social Security can create some unintended problems. I am employed, will turn 70 in a few months and will continue to be employed for another decade or so after that, I hope. I use employer-provided high-deductible health insurance (with a voluntary health savings account) and thus will not need or depend on Medicare for quite a while. From your article and others, I understand that the SSA will involuntarily sign me up for Medicare Part A when I apply for Social Security in a few months, so that they start at the same time. At that point (once I have Medicare Part A), I can no longer contribute to my employer’s HSA and, in fact, shouldn’t contribute to it for the full six months prior to the first month I begin to be covered by Medicare Part A. I’m surprised but okay with this, and I appreciate very much that you’ve written such a clear, helpful and searchable article!

However, here’s a little issue that’s tickling my memory. It seems like at the age of 65, I received something from the Social Security Administration in the mail urging me to sign up for Medicare Part A (because it is free), even if I wasn’t yet going to sign up for Medicare Part B or collect Social Security. In fact, it seems like I got the impression that there was a penalty for not signing up for Part A, since it is free and I was eligible. So, I think I did sign up for Medicare Part A in response to this mailing nearly five years ago.

First of all, I don’t know how to check on this and see if I’m indeed covered by Medicare Part A. If so, then since I’ve been contributing ignorantly and illegally to an employer’s HSA for several years, it sounds like I’m subject to penalties from the IRS. (I’ve also had employer-contributed funds credited to my HSA account.) Could you please tell me what I should do? How do I check to see if I’m already on Medicare Part A? And if I have been for all these years, what do I need to do about it?

Phil Moeller: Join the Unintended Consequences Club — an unfortunately large group of people who have been adversely affected by Medicare and Social Security rules that no one ever told them existed!

The first thing I suggest you do is to open an online My Medicare account. It will reveal whether Medicare’s records show you as having Part A, and if so, its effective date.

If you have had Part A during the period you have been contributing to your HSA, you can contact Social Security and request to be retroactively dropped from Part A. Honestly, I don’t know if the agency will do this, but it’s worth a try.

I assume that you have never used Part A as secondary insurance for any covered hospital claims filed with your employer’s health insurance carrier. If that’s the case, I’d tell Social Security that you recently learned you have had Part A, never intended to sign up for it, and wish it to be cancelled. By now, the agency surely has dealt with many people with HSAs who have learned that they inadvertently were enrolled in Part A.

If the agency refuses to expunge Part A from your Social Security record, you then have the decision of whether to proactively tell the IRS and pay whatever penalties it may impose. I would never suggest that people not obey the laws here. But it is not clear to me that the IRS has either the manpower or the desire to ding people like you over innocent violations of rules that are murky as heck to begin with.

This would be your decision, of course. I hope my reply has been of some help. If you try to get Social Security to disenroll you from Part A, I’d appreciate you sharing with me the results of your efforts.

Jean writes an update: I signed up My Medicare and my Medicare card showed that I had been enrolled in Medicare Part A since I turned 65, so I definitely have a problem.

Next, I called Social Security to try to get Part A retroactively cancelled. They cannot do that over the phone, although they are happy to cancel it as of now, pointing out that it will take weeks to actually be accomplished. They offer no hope at all that the cancellation can be made retroactive, but they have given me two ways to ask for it, so it will at least be considered.

First of all, I can file the U.S. government form CMS-1763, Request for Termination of Premium Hospital and Supplementary Medical Insurance, which offers a section where you can explain your reason for the request and ask that it be made retroactive. They also gave me an address to which I can write to make this request directly.

I spent over nine hours yesterday on the phone, mainly on hold, to learn this much. It would apparently take weeks or even months for this request to be considered and for me to learn the result. They aren’t concerned at all that this rule is obscure and thus I had no reasonable way to know about it for the last few years, or that their own mailing — which certainly failed to mention this drawback — was what persuaded me to enroll in Part A in the first place!

As you mentioned, another option is to see if they are efficient enough to track me down and insist that I pay the fine for contributing to an HSA during the time I had Medicare Part A. I’m going to take my chances! At least I persuaded my new employer to cease holding out HSA deductions from my paycheck and possibly refund (and charge me tax on) the handful of HSA deductions I have already had withheld by them. As for the amounts my former employers withheld for HSA, I will just use the credit cards with those funds for legitimate medical expenses as they arise. Once the funds are consumed and my HSA accounts are defunct, I feel my chances of being tracked down about them are probably less.

Again, I deeply appreciate your calling the situation to my attention through your article.

Phil Moeller: Thanks so much for sharing your experiences so that other readers can benefit.

Phil Moeller is the author of “Get What’s Yours for Medicare: Maximize Your Coverage, Minimize Your Costs” and the co-author of the updated edition of The New York Times bestseller “How to Get What’s Yours: The Revised Secrets to Maxing Out Your Social Security,” with Making Sen$e’s Paul Solman and Larry Kotlikoff. On Twitter @PhilMoeller or via e-mail: medicarephil@gmail.com.

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