Pro Bono Attorneys Deskbook
Senior Citizens Handbook
Legal Services of
Eastern Missouri has developed a handbook for senior citizens. This
handbook covers a variety of issues not only relevant to seniors but to
other needy persons. A
printable (PDF) copy of the Handbook is available from the Mo Bar
website. The Table of Contents below lists the subject heads and
provides links to the contents of the Handbook.
Appreciation to Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis and Stan Stan Platke, General
Editor, and the chapter authors.
SENIOR CITIZENS HANDBOOK
Laws and Programs
Affecting Senior Citizens in Missouri
Legal Services of
TABLE OF CONTENTS
Basics of Social Security and Supplemental Security Income
Stamp Program/Supplemental Nutrition Assistance Program (SNAP)
Relief for the Elderly
Discrimination in Employment
Medicaid (Mo HealthNet)
Legal Information About Landlord-Tenant Relations
Rental Assistance Programs
Health and Life Insurance
Transfer Upon Death
Power of Attorney, Personal Custodian and Guardianship
Protective Services and Adult Abuse
Statutory Living Will (Health Care Directive)
Durable Power of Attorney for Health Care
Patient Self-Determination Act
Veterans Benefits That Increase Income to Pay for Long Term Care
Non-Service Connected “Aid and Attendance”
Information and Referrals for Seniors and Persons with Disabilities
Agencies on Aging (AAA)
Missouri Community Action Agencies
Social Services Income and Family Maintenance
Health Care Information
Printing History/Copyright Information
ACKNOWLEDGEMENTS FOR THE 18TH EDITION
Welcome to the
Eighteenth Edition of the Senior Citizens Handbook. If the Senior
Citizens Handbook were a person, that person could now vote. Alas, it is
not. However, it is a product of many persons of voting age or above who
have tirelessly toiled over the years to make this publication so
helpful to so many persons. The Seventeenth Edition was distributed to
more than 30,000 persons. We are so grateful.
are grateful to Kathy Case Tahan, a gentle woman, a scholar and a judge
of good content. She made contact with all the authors and was
instrumental in gathering together all the necessary information for
this update. If the Senior Citizen Handbook were a train, she would be
the conductor and chief engineer. So, sticking with the train analogy,
Kathy Case Tahan receives a special “toot out.”
MISSOURI BAR and the MISSOURI BAR FOUNDATION have become an integral and
instrumental to the success of this project, publication, distribution,
and support on various levels. Dan Lehman has been very valuable and
very hands on. Keith Birkes has been supportive and very helpful. By
naming two, I little doubt have omitted others. We know the book goes
through a number of hands and we are grateful to ALL OF YOU!
continue with our now established tradition of tying particular authors
to particular chapters. Our deepest appreciation to those of you who
year in and year out recognize the value of the publication and take the
time to respond to our entreaties to UPDATE, UPDATE, UPDATE. THANK YOU.
THANK YOU. THANK YOU. While we endeavor to miss no one, it may happen on
occasion. LET STAN KNOW. My sincere apology in the event of an
oversight. As always, all of the fine and helpful information contained
herein is attributable to the contributors. Any mistakes of information
or errors of any other type are attributable to the General Editor.
This edition of
Laws and Programs Affecting Senior Citizens in Missouri is the
eighteenth. The first edition was prepared by staff personnel for the
Legal Aid Society of the City and County of St. Louis (LAS), presently
Legal Services of Eastern Missouri, Inc. (LSEM), with the assistance of
members of the Committee on Aging of the Young Lawyers Section of the
Bar Association of Metropolitan St. Louis. Seed funding for the project
was provided through a grant from the Mid-East Area Agency on Aging.
That grant, along with additional money contributed by the Young Lawyers
Section of Bar Association of Metropolitan St. Louis, made the first
originator of the concept for the book, as well as general project
supervisor and original researcher, was Barbara J. Gilchrist, J.D.,
Ph.D., then a VISTA attorney in the Elderly Unit of LAS and a member of
the Committee on Aging of the Bar Association’s Young Lawyers Section,
subsequently a staff attorney with LSEM, and presently a professor of
law at St. Louis University Law School. Most chapters in this book were
topics in a lecture series presented for the elderly in the St. Louis
area by Ms. Gilchrist under the sponsorship of the Mid-East Area Agency
on Aging. Dan K. Joyce, who was then a law student at the St. Louis
University School of Law, completed the adaptation of the original
lecture material, performed additional writing, research, and editing,
as well as organized and supervised production.
thanks for that initial concept go to many people for their helpful
contributions to the book. Their suggestions were incorporated into the
final product. Thanks to: David Lander, then the Executive Director,
Legal Aid Society; Doreen Dodson, then the supervising attorney of The
Elderly Law Unit, LAS, and member of the Committee on Aging of the Young
Lawyers Section of the Bar; Kathy O’Blennis, then a staff attorney, LAS,
and member of the Committee on Aging; Artie Wolf and Mamie Rogers, then
Human Services students at Washington University; Mary Lynn Cook of the
community relations staff at St. Louis Children’s Hospital; and all the
staff members of the Mid-East Area Agency on Aging who assisted on the
The Missouri Bar
Foundation, the Missouri State Office of Aging and the nine regional
Missouri Area Agencies on Aging provided additional funding for the
second edition. The Missouri Office of Aging and the nine regional
Missouri Area Agencies on Aging provided funding and coordination for
the third edition. Funding and coordination for the third edition was
provided by the Missouri Office of Aging, E.C. Walker, director, through
the Older Americans Advocacy Assistance Program, Gerald J. Cohen, legal
services developer. The fourth revised and expanded edition also
received funding by the Missouri Division of Aging, through the Older
Americans Advocacy Assistance Program, as did the fifth edition, Jenny
B. Neidens, legal services developer. Initial funding for the sixth
edition was provided by the St. Louis Area Agency on Aging. The Missouri
Bar Young Lawyers’ Section Council, the Missouri Lawyer Trust Account
Foundation, and the Missouri Bar Foundation provided substantial
funding. The Missouri Bar Foundation, the Missouri Lawyer Trust Account
Foundation and the Missouri Bar Young Lawyers’ Section Council provided
funding for the seventh edition. Funding for the eighth edition was
provided by The Missouri Bar Young Lawyers’ Section Council, the
Missouri Lawyer Trust Account Foundation, and the Missouri Bar
Foundation. Funding for the ninth edition was provided by The Missouri
Bar Young Lawyers’ Section Council, the Missouri Bar Foundation, the
Anheuser-Busch Foundation, and the Mid-East Area Agency on Aging. Major
funding for the tenth edition was provided by the Missouri Bar
Foundation. Funding was also provided by the Missouri Young Lawyers’
Section Council and the Missouri Lawyer Trust Account Foundation. From
the 11th edition forward, the major funding for the Senior Citizens
Handbook has been the Missouri Bar Foundation. We are truly
appreciative and grateful. We would further like to acknowledge and
thank The Missouri Bar for printing this publication and for the
extraordinary efforts toward distribution. The strong commitment of The
Missouri Bar to this project has been instrumental in its success. It is
truly difficult to overstate the importance of The Missouri Bar and
Missouri Bar Foundation to this publication. Their effort has been and
continues to be extraordinary.
way, many individuals have contributed to various editions of this
handbook. The list is lengthy, but important to include because
cooperative effort has always been and continues to be the keystone to
the continued success of this work. Those individuals include Dorothy
O’Driscoll, Ann B. Lever, Kevin Crinn, Susan Alverson, Jay Whaley,
Richard Chase, Kayla Vaughan, Nina Balsam, Michael Ferry, Gayle
Williams, Judy Freiberg, Jo Ann Greenberg, Merton C. Bernstien, Michael
M. Greenfield, Carol Indelicato, Kathleen Murray, Mary E. Wyrick, Betty
Springfield, Fran Grecco, Marsha Griffin, Sara Henryson, Thomas Borek,
Dennis Capriglione, John Essner, Karen Shelly, Colleen Landefeld, Ted
Tahan, Pauline Davis, Daniel Claggett, Catherine Nelson, Virginia Neel,
Dianne Taylor, Melton Lewis, Kathy Tahan, Kerry Kaufmann, Richard Wise,
Pam Coffin, Jacob Gobel, Philip Senturia, Daniel Claggett, Paul Hargadon,
David Purcell, Joel Ferber, Harry Charles and Karen Warren. To all these
individuals and to those who escaped notice and attention, thank you one
THE BASICS OF
SOCIAL SECURITY AND SUPPLEMENTAL SECURITY INCOME
Editors’ Note: The information in this booklet on
Social Security and Supplemental Security Income (SSI) is designed
to give you a brief idea of what these programs are all about and
what you have to do to qualify for them. All figures used to
determine eligibility for benefits are current as of January 2009,
and are subject to change at any time. For more detailed information
about Social Security and SSI, call or visit the Social Security
Administration Office nearest you.
Introduction to Social Security
For most American workers, the initials "FICA" on their
paychecks may mean nothing more than a payroll deduction. Some refer
to it as "just another tax," while other persons only know that it
means money they have earned and cannot spend.
Actually, the letters "FICA" stand for "Federal Insurance
Contributions Act," the official name for the federal law that set
up the Social Security Program of 1935. Social Security provides a
minimum income for eligible workers and their families when the
worker retires, becomes severely disabled, or dies. Following are
some basic facts you should know about Social Security.
Full retirement age for individuals born in 1937 or earlier is
65 years old. For each year later a person was born, their
retirement age goes up two months, until 1943. Individuals born from
1943 through 1954 will all retire at age 66. After 1954, the
retirement age moves upward again two months per year through 1960.
For instance, someone born in 1938 reaches full retirement age at 65
years and two months of age, while someone born in 1959 reaches full
retirement age at 66 years and 10 months of age. For individuals
born in 1960 or later, full retirement age is 67.
Eligibility for Social Security benefits depends on how long
you have contributed to the program as a worker. In order to qualify
for retirement, disability or survivors benefits for you or your
family, you must have a certain number of years of coverage.
Historically, workers generally earned a quarter of coverage for
each three-month calendar quarter in which wages of $50 or more were
paid. A quarter of coverage is now often called a “credit” because
the quarters of coverage can be earned at any time during a year. A
highly paid worker can earn all four quarters, or credits, in the
beginning of the year. (Four quarters, of course, make one year of
In 2011, for example, a worker receives one credit for each
$1,120 of earnings, up to a maximum of four credits based on annual
earnings of $4,480 or more. This amount goes up each year, and was
lower in the past. This amount includes gross wages paid and net
Just more than 10 years of coverage (40 quarters) will
generally fully insure a worker and family for life, but less than
that will also be enough for full coverage if the worker has
achieved a certain amount of work credit. The work credit
requirement differs, depending on whether you are applying for
retirement benefits or whether your spouse and dependents are
applying for survivors benefits after your death. To find out how
many quarters you have or how many you need to qualify, contact your
local Social Security Administration office.
To be eligible for disability payments, you must meet
the following test:
(1) You were recently employed; and
(2) You possess the same amount of work credit that would be
required if you reached retirement age in the year you were
(3) You have 20 quarters (five years) of coverage out of the
preceding 40 calendar quarters (10 years) before you became
disabled. The required coverage is lower if you became disabled
before the age of 31. It is important to apply for disability
benefits soon after you become disabled, because a lengthy delay may
make you ineligible.
those disabled by blindness, (1) and (2) above are required, but not
How Much to Expect
Being "covered" or insured only means that you and your family
can get benefits. The amount you receive in monthly paychecks
depends on the average yearly earnings of your working career
under Social Security. These basic benefits are now automatically
adjusted upward every January to keep pace with the cost of living.
Because workers do not pay FICA tax beyond a certain amount of
earnings in a year, there is always a maximum amount for retirement
benefits. As of January 2011, the normal maximum monthly amount of
retirement insurance benefits for an individual who reaches full
retirement age in 2011 is $2,366. Sometimes a retired person’s
dependents (such as spouse or minor children) will also receive
payments, up to a total of about 50 percent more.
If you are retired or near retirement and you want to figure
out your Social Security benefits, call the Social Security
Administration toll free at 1-800-772-1213 and ask to receive a
Personal Earnings and Benefit Estimate Statement (PEBES). These
statements are now also automatically sent annually to any
individual who paid taxes on income during the previous year.
Social Security also now encourages people to file
applications and seek information via their website, which has many useful functions,
including frequently asked questions and complete lists of the rules
and regulations covering Social Security’s programs.
The amount of retirement benefits you receive can be affected
by whether you take “early retirement.” You may choose to retire as
early as age 62. However, for each month you take your benefits
early, your monthly benefits are permanently reduced by a certain
percentage (depending on your full retirement age). For an
individual born in 1943, for instance, taking retirement at age 62
instead of age 66 (four years early) would result in a 25 percent
reduction of their monthly payments on a permanent basis.
Working After Payments Start
After retirement, you may get an opportunity to go back to
work on a full-time or part-time basis. Before you decide to work,
you should know how your earnings would affect your Social Security
Workers younger than full retirement age can earn $14,160 in
2011 ($1,180 per month) without affecting their retirement checks at
all. For every two dollars ($2) of earned income above that limit,
Social Security will reduce their checks by one dollar ($1).
A worker can earn $37,260 (as of 2011) in the year they reach
full retirement age without affecting their retirement checks. For
every three dollars ($3) of earned income above that limit, Social
Security will reduce a check by one dollar ($1). However, Social
Security will only count earnings prior to the month in which the
individual reaches full retirement age. Starting that month,
earnings no longer reduce retirement benefits.
NOTE: For more
information about recent changes in Social Security rules relating
to work activity, ask for a copy of the free publication, How
Work Affects Your Benefits,
at any Social Security Administration office.
A Note about So-Called “Notch Babies”
The term “notch” refers to Social Security benefits paid to
people born between 1917 and 1921. The notch resulted from a 1972
change in the Social Security law that used a flawed formula to
calculate how much someone’s benefits should be. This flawed formula
provided excess benefits to those people whose benefits were
calculated under it. Before Congress corrected this error in 1977,
the benefits for many people born between 1910 and 1916 were
calculated using the flawed benefit formula; as a result, they
received an unintended windfall from Social Security.
When Congress fixed the mistake, it wanted to avoid an abrupt
change for those who were about to retire, so it provided a
transition period. Therefore, when Social Security benefits are
calculated for people born between 1917 and 1921, two computations
are used. One calculation uses the new (and correct) 1977 formula,
and the other uses a special transition formula. Benefits are based
on whichever calculation pays the higher benefit. Benefits for
everyone born in 1922 and later are calculated using only the new
and correct 1977 formula, which generally results in lower benefits
than those computed using the “notch” calculation method.
Thus, the “notch babies” (those born between 1917 and 1921)
receive less money than those people born before 1917 who had
similar work histories, but generally receive more benefits than
those born in 1922 or later. Thus, the argument of “pro-notch baby”
groups is that beneficiaries born between 1917 and 1921 should get
more money simply because people born between 1910 and 1916 are
getting too much money. Naturally, the people born after 1921 would
also want to receive this extra money. This would result in the
whole system changing back to the incorrect formula from 1972,
resulting in billions and billions of extra dollars spent each year.
The government has completed an investigation into the notch and
determined that no changes will be made.
The discontent of “notch babies” is kept alive by profiteering
lobbying groups who mislead people born between 1917 and 1921 into
thinking that they are receiving fewer benefits than people both
older and younger than they are. This is not true.
Introduction to Supplemental Security Income (SSI)
The Social Security Administration also administers the
Supplemental Security Income (SSI) program. This program provides a
basic monthly income to blind, disabled and elderly (age 65 or
older) persons who urgently need financial assistance. Unlike Social
Security, you can receive SSI checks even if you have never worked
or if you do not qualify for Social Security for some other reason.
SSI is available to persons who meet the income requirements
and who are 65 or older, blind, or disabled.
"Blindness" is defined under the SSI program as central visual
acuity of 20/200 or less in the better eye with the use of a
corrective lens or visual field restriction to 20 degrees or less.
SSI defines a person as "disabled" if that person is unable to
engage in any substantial gainful employment due to a physical or
mental impairment that has lasted or is expected to last for at
least 12 months or is expected to result in death.
As of January 2011,
one’s individual “countable” income must be less than $674 a month.
A couple’s countable income cannot be more than $1,010 a month.
Social Security uses the term “countable” because not all income
counts. The first $20 of most income, $65 more of wages, one-half of
wages above $65, food stamps, home energy and housing assistance,
and other exemptions are not counted as income. The Social Security
Administration considers gross wages, rather than net income, or
“take home” pay.
NOTE: By law, the above figures are subject
to change once a year.
A single person can have available assets (i.e. easily
converted to cash) up to $2,000 and still receive SSI. A couple can
have up to $3,000. In addition, you may own a car worth $4,500 or
less, a home of any market value as long as you reside in it,
household goods worth $2,000 and a life insurance policy worth
$1,500 (face value) without losing SSI benefits. There are some
exceptions to these limitations. Contact the Social Security
Administration office in your community for more information.
What May Reduce Your SSI Benefits?
Any unearned income greater than $20 a month reduces the
amount of your SSI check. This type of income includes Social
Security payments, pensions, gifts and other unearned money. People
who work while receiving SSI can earn up to an additional $65 per
month without having their benefits reduced. For every two dollars
($2) of earned income above that amount, their SSI check is reduced
by one dollar ($1).
Eligible people living in a friend’s or relative’s home may
face a reduction in SSI benefits. Also, an unmarried couple living
together may be listed by the Social Security Administration as
"holding out as husband and wife." When this happens, and both
persons are receiving SSI, each check will be reduced, if necessary,
so that the two checks together will equal the amount that a couple
would receive. If you feel that such rulings are wrongly applied to
your situation, you can challenge them administratively or in court.
(See Appeals Process.)
If your application for Social Security or SSI benefits is
denied or if any of your benefits are reduced or terminated, you
have the right to appeal the decision. Here are the steps:
(1) After the action is taken against you, you must make a
written request for reconsideration or for a hearing
in front of an administrative law judge within 60 days of the
denial. Note: If you previously were receiving benefits, and you
are being terminated because you have medically improved and are now
able to work, and you disagree, and you file your request for
reconsideration or hearing within 10 days of the denial, your
benefits will continue until the reconsideration decision is made.
(2) If you win an appeal at any level, you will be entitled to
all of the benefits you would have received if your application had
been granted right away.
(3) If an administrative law judge finds against you, you have
a right to request a review by the Social Security Appeals Council
in Virginia within 60 days of the adverse decision. The council can
refuse to review the case.
(4) If the council refuses to review or decides against you,
you have another 60 days to appeal to the U.S. District Court.
Under an experimental new appeals structure, many Missouri
applicants for benefits based on disability are able to skip the
Forms are available from any Social
Security Administration office or
on the Internet. You are
allowed to have a friend or relative assist in any appeal
proceeding. You may also want to contact an attorney to help with an
appeal or any other matter concerning the Social Security and SSI
programs. In new claims for benefits, most attorneys only charge a
fee if the claim is successful and charge a percentage of the
retroactive benefits award. Consult the listing at the end of this
booklet for legal assistance information.
It is illegal for attorneys or other representatives to charge
any fee for help in any Social Security matter without getting the
approval of the Social Security Administration
Some Social Security recipients receive checks on behalf of
beneficiaries. These recipients are known as representative
payees. Their primary responsibility is to use the Social
Security money for the basic or personal needs of the beneficiary.
The representative payee is usually a spouse or other
relative, friend or legal guardian. An institution such as a nursing
home can also be designated as a representative payee.
Appointment of a representative payee begins with a friend or
relative notifying the Social Security office that an individual is
incapable of handling her or his own affairs. A doctor’s statement
to that effect must also be filed. The Social Security
Administration then determines whether the individual is mentally
competent to continue receiving her or his own checks. If the Social
Security Administration finds that the individual is not competent
to do so, it will select a representative payee. This selection may
If, at some point after the appointment of a representative
payee, an individual feels competent to personally receive the
Social Security checks, that individual can ask the Social Security
Administration to stop payment to the representative payee. For more
details about stopping representative payments or changing your
representative payee, call or visit the Social Security office
By Karen Warren and Paul Hargadon of Legal Services
of Eastern Missouri, Inc. Karen is the co- managing attorney of the
Health & Welfare Unit at Legal Services working with the Public
Benefits Project. Paul is a public benefits specialist with the
Public Benefits Project.
Editors’ Note: This information is designed to give you a brief
description of the Food Stamp Program and what you have to do to
qualify for it. The rules listed below are specific to individuals
60 and older; other rules may apply if you are younger than 60 or
are an immigrant (non-citizen). All figures are current as of
October 2010, but are subject to change. For more information, call
or visit the Family Support Division Office (formerly the Division
of Family Services) nearest to you. Information on the Food Stamp
program and other programs administered by the Family Support
Division is available
on the Internet. The Food, Conservation, and Energy Act of 2008
renamed the Food Stamp program the “Supplemental Nutrition
Assistance Program” (SNAP) effective October 1, 2008. At this time,
the program is still called the Food Stamp Program in Missouri.
rising food costs pose special problems for millions of older
Americans on fixed incomes. The Food Stamp Program helps stretch the
food budgets of persons with eligible incomes. Food stamp benefits
are issued on an electronic benefits transfer (EBT) card. It is
issued by the federal government and looks like a credit/debit card,
but it can only be used to purchase food.
How to Get Food Stamps
To apply for food stamps, you can have an application mailed
to you or you can visit the nearest Missouri Family Support Division
(FSD) office to apply in person. FSD is required to take your
application on the same day that you visit the office. If you
request an application by mail, FSD is required to mail you one
on the same day that you request an application. You can
download and print off and complete a food stamp application
at the Social
You can return the application in person, by mail or by fax.
You can locate the address and fax information for each county on
a look-up screen using the "Income Maintenance & Self-Sufficiency
Programs" portion of the
FSD web page.
As with all financial assistance programs, you must meet
certain income eligibility requirements. You should provide proof to
the FSD office of all income, rent, utility, child care, and medical
expenses – including out-of-pocket expenses for health insurance
premiums, doctor bills, prescription bills, required medical
equipment or supplies, and transportation costs you incur to obtain
medical services. Because income and expenses are evaluated for
program eligibility, you should be careful to provide documentation
and verification in order to obtain the maximum amount of food stamp
benefits. However, do not delay applying if you do not have all of
these pieces of verification.
The application process starts the day you apply, even if you
do not have all of the verifying information. FSD has 30 days to
process the application. However, if you have less than $150 in
monthly gross income and $100 or less in liquid resources, or your
rent and utilities exceed your income and resources, you are
eligible for “expedited” food stamps, which means that FSD must give
you food stamps within seven days of your application. The only
piece of information required for expedited food stamps is
verification of your identity.
At initial application and when there is a break in the food
stamps certification period, applicants will be screened for
expedited (emergency) food stamp benefits. Expedited food stamp
benefits are prorated from the date of application through the end
of the application month. In some circumstances, the eligibility
specialist (caseworker) may screen the household to determine if the
criteria for expedited service benefits are met for the following
Eligibility is determined on a “household” income basis. A
“household” is a person living alone or people living together who
meet two tests: (1) they buy food together, and (2) they prepare
food together. FSD uses the term “eligibility unit” when referring
to a household. If you share a residence and buy and store your
food separately from that of your companions, you will not be
considered part of the household for food stamps purposes. Certain
household members are mandatory food stamps household members,
regardless of how they purchase and prepare meals. These household
members are as follows: (1) spouses; (2) parents and children under
22 years old; and (3) children, except foster children, under 18
years old who are under the parental control of a person other than
their parents and that individual is exercising parental control
(i.e., grandparents may apply for grandchildren in their care, even
if they do not have “legal” custody).
Foster children may be included in the food stamps household, but
their income must also be included in determining the household
However, if you are at least 60 years old, living with others,
and unable to purchase and prepare food because of a permanent
disability, you can be your own household as long as the others with
whom you live do not have an income greater than 165% of the poverty
level. The burden is on you to show that situation exists if you
want to be considered for food stamps apart from other household
If the entire household consists of persons who are elderly
(age 60 years or older) or meet the Food Stamp Program definition of
disabled, the countable income is the net monthly income. Net
monthly income is the gross monthly income (monthly income before
deductions) minus the following: 20 percent of gross earned income;
a standard deduction, based on the number of eligible members in the
household; dependent care expenses; shelter and utility costs that
exceed 50 percent of income; and allowable medical expenses greater
than $35 a month. It is important for you to tell your eligibility
specialist (caseworker) about all your medical expenses, including
over the counter medications you take at your doctor’s direction and
any transportation costs for getting medical care.
Many people mistakenly believe that the Food Stamp Program is
designed to help only the desperately poor or non-working people.
However, elderly and disabled households are often eligible for a
$16 minimum monthly benefit. In addition, households with an elderly
or disabled member are not subject to a gross income test.
Households with at least one member 60 years old or older may
have resources up to $3,000.
The following assets do not count as resources in determining
food stamp eligibility: your home and surrounding property; income
producing property; personal belongings and household goods; burial
plots; the cash value of life insurance policies and pension plans;
rental property if rented at fair market value; property and
equipment used for self-employment; resources such as trust funds or
security deposits not readily available as cash; and
the value of all vehicles.
Food Stamp Exclusions
Food stamps may be used only to purchase food. However, hot
food that has already been prepared cannot be purchased with food
stamp benefits (i.e., food prepared at grocery store salad bars,
buffets, and meat departments, and the purchase of meals at
restaurants). In addition, you may not use food stamp benefits to
purchase non-food items, and the regulations explicitly exclude the
purchase of tobacco, pet food, alcoholic beverages, and paper
products with food stamp benefits.
Denial: Right to Appeal
If your application for food stamp benefits is denied, you may
appeal the denial through the fair hearing process. To request a
hearing, you may visit the FSD office, contact your eligibility
specialist (caseworker) by telephone, or send a written request. A
fair hearing must be requested within 90 days of the date of denial.
Just as with Social Security and SSI, you may want the help of an
attorney. FSD can provide information to you regarding free legal
assistance available in your area.
If FSD sends a notice to terminate or reduce your food stamp
benefits, you may also request a fair hearing. If the request is
made within 10 days of the date of the notice, you may request to
continue to receive benefits, at the current benefit amount, until
the decision from the fair hearing is received. If the hearing
decision is in your favor, you will continue to receive benefits.
However, if the hearing decision is not in your favor, you may be
required to pay back the benefits that you received.
If you are not satisfied with the decision from the fair
hearing, you may appeal to the circuit court in your county. This
appeal must be made within 90 days of the date of the fair hearing
TAX RELIEF FOR THE
By Harry Charles,
attorney at law and CPA. Mr. Charles is a sole practitioner
concentrating on tax disputes. He is also an adjunct tax professor
at Washington University School of Law. All tax sections are
attributable to Mr. Charles.
Property Tax Credit (commonly called “circuit breaker”)
The State of
Missouri has expanded the Property Tax Credit (PTC). If a taxpayer
is single and a renter or part year homeowner, the first question is
whether their total household income is $27,500 or less. If married
filing combined, the total income must be $29,500 or less. For 100
percent service connected disabled veterans, VA payments can be
excluded from the income calculation. For those taxpayers who owned
and occupied their home for the entire year, the income limit
for a single person is $30,000. For those filing married combined,
the income limit is $34,000. As before, 100% service connected
disabled veterans can exclude their VA payments. Taxpayers must have
paid real estate taxes or rent on the home that they occupied.
taxpayers must truthfully state that they did not employ illegal or
test is whether the taxpayer or their spouse was 65 years of age or
older as of December 31, 2008 and either was a Missouri resident for
the entire 2009 calendar year. If neither the taxpayer nor their
spouse was 65 years or older as of December 31, 2009, and neither
was a full-year Missouri resident, the state provides the first of
three fallback qualifiers. If the taxpayer or their spouse was 100
percent disabled as a result of military service, then they qualify
for the PTC. The second fallback qualifier allows the PTC if the
taxpayer or their spouse was 100 percent disabled in 2009. The third
fallback qualifier allows the PTC if the taxpayer was 60 years of
age or older as of December 31, 2009 and received surviving spouse
Social Security benefits.
taxpayers who are not required to file a federal tax return should
file Form MO-PTC. For those who are required to file a federal
return but do not claim an income modification or a pension
exemption, file MO-1040P. Those who must file a federal tax return
and have modifications to income or claim other tax credits should
use both MO-1040 and MO-PTS.
Department of Revenue offers free preparation of the Missouri
individual income tax return and/or property tax credit by
Department of Revenue employees at the Tax Assistance Offices. The
offices are located in Jefferson City (573-751-7191), St. Louis
(314-877-0177), Cape Girardeau (573-290-5850), Springfield
(417-895-6474), Joplin (417-629-3070), Kansas City (816-889-2920)
and St. Joseph (816-387-2230). Additional information is available
at DOR's Tax
Assistance Center web page.
Homestead Preservation Credit
Preservation Credit offered qualified taxpayers (65 or over and/or
100 percent disabled) a tax credit if their real estate property
taxes increase 2.5 percent in a non-reassessment year (even-numbered
year) or 5 percent in a reassessment year (odd-numbered year). The
credit is for the amount that exceeds the 2.5 or 5 percent tax
increase. The legislature must appropriate money for the credit and
taxpayers must claim it each year that they qualify. The filing
period for the 2009 HPC will be from April 1, 2009 to
October 15, 2009. No extensions are available. The HPC program
expired on August 28, 2010.
federal rules are as follows. For taxpayers who are single and 65 or
over at the end of 2009, they must file a return if their gross
income was at least $10,750. For taxpayers filing as head of
household who were 65 or older, the income required for filing is
$13,400. For those filing married jointly, if one is 65 or over, the
income required for filing is $19,800. For married filing jointly,
and both are 65 or over, the income required for filing is $20,900.
For married filing separately at any age, the income required for
filing is $3,650. For qualifying widow(er) with dependent child and
65 or over, the income required for filing is $16,150.
part of Social Security benefits is usually no more than 50 percent.
However, up to 85 percent can be taxed if the total of one half of
the taxpayer’s benefits and all of their other income is more than
$34,000 ($44,000 for married filing jointly) or the taxpayer filed
“married filing separately” and lived with their spouse at any time
allowed to deduct from their adjusted gross income the greater of
either their standard or itemized deductions. The standard
deductions for most people are as follows: (1) for single or
married filing separately, the standard deduction is $5,700; (2) for
married filing jointly or qualifying widow(er) with dependent child,
the number is $11,400; and for (3) head of household, the standard
deduction is $8,350. There are higher standard deductions for
taxpayers or their spouses who were born before January 2, 1944
and/or blind. Each condition (age and blindness) increases the
There is a
federal tax credit for the elderly or the disabled, which is
available to taxpayers who were 65 or older at the end of 2009 or
were under 65 but permanently and totally disabled, received taxable
disability income in 2009, and as of January 1, 2009 had not reached
mandatory retirement age. The federal credit has income limits which
are set forth in
IRS Publication 524, “Credit for the Elderly or the
increased its standard deduction amounts.
Dwelling Accessibility (DAT) Tax Credit
enacted a tax credit for making a taxpayer’s principal residential
dwelling accessible for individuals with disabilities. The disabled
individual must permanently live in the dwelling. The credit is
issued on a first come, first served basis and is available to any
individual or married couple with a federal adjusted gross income of
$30,000 or less. These qualifying taxpayers can get a credit equal
to the lesser of 100 percent of their cost or $2,500 per taxpayer,
per year. For taxpayers with incomes between $30,000 and $60,000,
the limit is 50 percent of cost, or $2,500, whichever is less. The
credit cannot be obtained in successive tax years. The credit must
be claimed by April 15 of the tax year via Forms MO-DAT and MO-TC.
Selling a Home
If a taxpayer
decides to sell his/her home and receives more for the home than was
paid, including improvements, the taxpayer has realized a gain on
the sale, which may be taxable. For taxpayers who sold their main
home in 2009, they may be able to exclude up to $250,000 ($500,000
on a joint return).
IRS Publication 523, “Selling Your Home,” sets
forth the rules and includes charts on calculating the gain. In
recognition of current economic problems, there are special rules
for foreclosures or repossessions of a principal residence. If a
lender cancels a taxpayer’s duty to pay back their principal home
mortgage, this can trigger a Form 1099-C, “Cancellation of Debt,”
which is an income document, reported to the IRS. For discharges of
indebtedness as described above made after 2006 and before 2013,
taxpayers can exclude from their gross income this “phantom
income.” However, they must reduce the basis of their home by the
amount excluded. IRS Form
982 sets forth the rules.
The rules for
claiming dependents on a tax return are complicated. Essentially,
dependents can be qualifying children or qualifying relatives.
Qualifying children are your son, daughter, stepchild, foster child,
brother, sister, half brother, half sister, stepbrother, stepsister,
or a descendant of any of them. The child must be less than age 19
at the end of the year, less than age 24 at the end of the year and
a full-time student, or any age if permanently and totally disabled.
Qualifying relatives are not qualifying children and do not have to
live with the taxpayer. These include a child, stepchild, foster
child (or a descendant of any of them), brother, sister, half
brother, half sister, stepbrother, stepsister, father, mother,
grandparent, or other direct ancestor, but not foster parent,
stepfather, stepmother, son or daughter or your brother or sister,
the taxpayer’s son-in-law, daughter-in-law, mother-in-law,
brother-in-law or sister-in-law. A taxpayer generally cannot claim a
married person as a dependent if they filed a joint return. The
taxpayer must have provided more than half the support for a
qualifying relative; a qualifying child must not have provided more
than half of their own support. The rules are set forth in IRS
Publication 501, “Exemptions, Standard Deduction and Filing
be able to claim a $500 exemption if they provided housing to a
person displaced by a Midwestern disaster.
IRS Form 8914 covers the
IRS Publication 4681 deals with canceled debts, foreclosures,
repossessions, and abandonments. The most important issues for many
taxpayers concern foreclosure or abandonment of a taxpayer’s main
home. Taxpayers who receive IRS Form 1099-C (Cancelation of Debt) or
Form 1099-A (Acquisition or Abandonment of Secured Property) should
consult the publication and/or a tax professional to properly report
the disposition of their property.
By Pam Coffin of Mercer, Inc. a, human resource consulting firm. Ms.
Coffin specializes in pension work. She is also a long-term
participant in the Legal Services, Inc., Volunteer Lawyers Program.
Many retired and disabled workers who are receiving Social
Security benefits have worked in one or more jobs that were covered by
an employer-sponsored retirement plan, such as a pension plan or a
401(k) plan. This chapter describes plans subject to a federal law
called ERISA, which covers many retirement investment plans. Those plans
that are not subject to ERISA (primarily plans for employees of
government and church-related organizations) are subject to different
rules. If the plan requires employees to contribute in order to
participate, employees have a 100 percent “vested” right to the benefits
for which they have paid. Employer-paid benefits are usually subject to
a “vesting” schedule, which may require employees to work for as long as
five years in order to “vest” in all or part of the employer-paid
benefits. Employees who last worked for a company before 1989 may not
have a vested right to employer-paid benefits if they worked for less
than 10 years.
Vesting is based on “service” with the employer. Service usually
means a calendar year or other 12-month period during which an employee
is credited with 1,000 hours. However, some plans simply require 12
months of work and do not count hours. If an employee terminates
employment before that person has a vested right to any part of the
benefit and does not return to work for the employer for five or more
years, prior service will be lost. Once the employee becomes vested,
however, that employee will always be vested in the benefits earned
under that plan. In a plan, such as a 401(k) plan, that requires
employee contributions, an employee who makes employee contributions and
who has any service on or after January 1, 2006 cannot lose prior
vesting service no matter how long he is gone. Slightly different rules
apply if an employee last worked for a company before 1989.
Payment of Benefits Upon Termination or Retirement
Many plans automatically “cash out” employees whose vested benefit
is worth $5,000 or less by paying the entire benefit in a lump sum.
However if the employee has not reached the plan’s normal retirement
age, a lump sum in excess of $1,000 can be distributed without consent
only if the plan sponsor establishes an IRA for the employee and
deposits the benefit in the IRA. The employee can withdraw the money
from the IRA at any time (subject to a 10 percent penalty unless the
employee is at least age 59-1/2 or meets certain other requirements).
Many plans – especially pension plans – either (1) do not cash out
benefits worth more than $1,000, or (2) require the employee’s consent
to pay lump sums between $1,000 and $5,000. This avoids the need to set
up an IRA. An employee who was cashed out is not entitled to a pension
from the plan at retirement because that employee has already received
If the plan does not cash out small benefits – or if the
employee’s pension was too large to cash out – the employee will be
entitled to receive a benefit upon reaching the plan’s “normal
retirement age” – usually age 65. Many plans permit payment to begin
earlier – at the “early retirement date” if the employee meets the
plan’s eligibility rules. Early retirement eligibility rules typically
require the employee to be 55 or 60 years old with 5, 10 or 15 years of
service. Monthly payments under early retirement pensions are normally
smaller than monthly payments beginning at normal retirement because the
employee has fewer years of service and because the payment period will
Pension plans must pay benefits in the form of an annuity,
although they can offer other optional forms. An annuity means that
periodic payments are made (usually monthly) as long as the employee
lives. Married employees are entitled to receive a form of payment
called a “qualified joint and survivor annuity.” A qualified joint and
survivor annuity usually pays a reduced monthly benefit during the
employee’s life in order to provide periodic payments (usually 50
percent of the employee’s payment) to the surviving spouse after the
employee’s death. Under this form of payment, the spouse to whom the
employee was married at retirement is entitled to the survivor benefit
even if they are later divorced (or the spouse dies and the employee
remarries). Beginning in 2008, married employees must also be offered a
“qualified optional survivor annuity” that pays a reduced benefit during
the employee’s life and a different percentage (usually 75 percent) of
the employee’s payment to the spouse after the employee’s death. A
married employee can elect to receive a form of payment other than a
joint and survivor annuity with his spouse as beneficiary only if the
spouse consents both to the form of payment and to any non-spouse
Usually, 401(k) plans pay benefits in the form of a lump sum or in
Plan distributions generally must begin by April 1 following the
calendar year in which the employee reaches age 70-1/2 or, if later, the
calendar year in which the employee stops working for the company that
sponsors the plan.
plans pay disability pensions to employees who must quit working for the
company because they become disabled. Some plans require the employee to
qualify for Social Security disability; others have different standards.
Most pay disability benefits only to employees who become disabled after
completing a minimum period of service – such as 10 or 15 years.
Pre-Retirement Death Benefits
If the employee dies after becoming vested and before
receiving any benefits under the plan and if the employee was married at
death, the surviving spouse will be entitled to a surviving spouse
benefit under a pension plan. However, some plans permit the employee to
waive the coverage (with the spouse’s consent). Many plans automatically
“cash out” a surviving spouse whose pre-retirement death benefit is
worth $5,000 or less by paying the entire benefit in a lump sum. A
survivor benefit that is too large to cash out is usually paid in the
form of an annuity for the life of the survivor beginning at the
employee’s death or, if later, when the employee could have elected to
begin receiving benefits had the employee survived. Most pension plans
do not pay pre-retirement death benefits to non-spouse beneficiaries,
although this is becoming more common, especially in a type of pension
plan called a “cash balance” plan. A non-spouse beneficiary can be
automatically cashed out regardless of the amount.
In a 401(k) plan, the surviving spouse is entitled to receive the
employee’s vested account balance unless the employee designated a
non-spouse beneficiary (with spousal consent). An unmarried employee can
also name a non-spouse beneficiary for the account. Death benefits in a
401(k) plan are typically payable in a lump sum after the employee’s
Post-Retirement Death Benefits
After payment begins to the employee under a plan, a death benefit
will be payable only if a death benefit is provided under the form of
payment in effect at retirement. If the employee was married and if
payment was made in the form of a joint and survivor annuity, the
surviving spouse will receive payments (usually 50 or 75 percent of the
employee’s payment, depending on the employee’s election) for life. If
payment was being made for the life of the employee only, no death
benefit will be payable.
Taxation of Benefit Payments
Monthly benefit payments – or installment payments made over a
period of 10 or more years – are generally taxable to the recipient and
are subject to federal income tax withholding, just like wages,
regardless of who receives them. However, unlike wages, the recipient
may elect not to have tax withheld from these pension benefits. Plan
distributions are not subject to Social Security (FICA) tax.
Employees (and surviving spouses) who are entitled to receive
taxable lump sums or installments over a period of less than 10 years
from an employer-sponsored retirement plan generally must be allowed to
choose between taking the distribution in cash or having it “directly
rolled over” to an eligible retirement plan that accepts rollovers.
Eligible retirement plans include traditional IRAs, Roth IRAs,
tax-qualified retirement plans, tax-sheltered annuities and certain
eligible state or local government deferred compensation plans. Taxable
amounts that are rolled over are generally not taxed until they are
actually paid out. Taxable amounts that are rolled over to a Roth IRA
are included in the recipient’s income for the current year. However, if
certain rules are met, distributions from the Roth IRA (including any
investment earnings) will be tax-free. See Individual Retirement
Plans, below. Taxable amounts that are not directly rolled over are
subject to 20 percent mandatory federal income tax withholding.
After-tax employee contributions can also be rolled over to an
eligible retirement plan (other than a state or local government
deferred compensation plan) that accepts after tax amounts.
Distributions that are required to be made because the employee is
over age 70-1/2 and hardship distributions from 401(k) plans cannot be
A non-spouse beneficiary may be entitled to elect to directly roll
over a lump sum distribution into an IRA or a Roth IRA. Taxable amounts
that are not directly rolled over are subject to 20% mandatory federal
income tax withholding.
The employee or
survivor fails to notify the employer of changes in address after
the employee leaves employment (or dies).
The employee or
survivor fails to apply for benefits when eligible.
The employer’s or
the plan’s records are incomplete or incorrect with respect to the
employee’s eligibility for plan benefits.
The employee does
not work for an employer long enough to become “vested.”
The employee does
not work in an eligible classification long enough to earn a
does not guarantee coverage under a pension plan – the employee must
also work for employers who contribute to the plan.
In some cases, the insolvency of the plan or the employer will
affect benefits. The PBGC – a federal insurance agency – guarantees some
(but not all) benefits under most types of pension plans. Benefits under
other types of plans – such as 401(k) plans – are not guaranteed or
insured. However, the employer and others who operate plans of all kinds
are required by law to use plan assets only for the purpose of paying
benefits and expenses.
If a plan is terminated or a former employee who is entitled to a
benefit cannot be located, the PBGC or the Social Security
Administration may be asked to notify the employee that a benefit is
Qualified Domestic Relations Orders
As a general
rule, an employee’s benefits in a retirement plan cannot be assigned or
reached by creditors before they are paid to the employee. However, a
court can order a plan to pay benefits to a spouse, former spouse, or
child to satisfy the employee’s support obligations or to divide marital
property in a divorce. The order will be valid only if it meets certain
requirements. In many cases, payment cannot be made to the spouse or
other person under the order until the employee is eligible to receive
benefits from the plan. A lump sum paid to a spouse or former spouse
under a qualified domestic relations order can be directly rolled over
to an IRA or other plan (and is subject to 20 percent federal income tax
withholding if it is not directly rolled over).
Information About the Plan
requires the employer (or the plan administrator) to furnish plan
participants and beneficiaries with a summary plan description that
contains information about the important provisions of the plan. A copy
of the plan document must also be made available upon request.
Participants are entitled to request a benefit statement once a year,
showing the benefit earned to date and whether it is vested.
Claims for Benefits
If an employee or beneficiary applies for a benefit and is denied
(or receives less than the applicant believes said applicant is entitled
to receive), the plan must provide a written explanation of the reasons
for the denial, a description of any additional information needed to
review the claim, and a copy of the plan’s claim review procedures. The
employee must make a claim for benefits in writing and retain a copy as
a record. An employee’s request for review of a denied claim must be
made in writing and must follow the rules set forth in the plan’s claim
procedures (including the plan’s time limit for filing the request). The
plan must, in turn, provide its decision on the review in writing.
Sometimes a claim is denied because the employer or the plan has
incomplete or incorrect information. The employee may use the employee’s
own records, Social Security records, or the employer’s records to
support the claim. Sometimes a claim is denied because the plan is not
being operated in compliance with applicable law (or with the terms of
the plan document). In such a case, the employee may be able to get a
court to force the employer to comply.
If the claim is denied on review, the employee may have to obtain
the assistance of an attorney. Pension cases are seldom easy. Even if
the employee wins, no damages are available under ERISA. A court can
award the employee the benefit due and attorneys’ fees. In some cases,
the court may also order the employer to pay the employee a penalty for
failing to provide plan information on a timely basis. If the employee
loses, however, the employee may be ordered to pay the opposing side’s
Questions about your ERISA rights can be directed to the nearest
office of the Employee Benefits Security Administration, U.S. Department
of Labor, listed in your telephone directory (314-539-2691 in St. Louis)
Division of Technical Assistance and Inquiries
Employee Benefits Security Administration
U.S. Department of Labor
200 Constitution Avenue NW
Washington D.C. 20210
Individual Retirement Programs
Individual retirement programs are available to employees and
people who are self-employed. The most common is the Individual
Retirement Account or “IRA.” Most people who are working can contribute
the maximum amount each year to an IRA, even if they are covered under a
retirement plan at work. Spouses can also set aside the maximum amount
each year, even if they are not working. The annual contribution limit
is $5,000. Individuals who are age 50 or over by the end of the calendar
year can also make a “catch-up” contribution for the calendar year. The
maximum annual “catch-up” contribution is $1,000 per individual. Most
people can choose between making tax-deductible contributions to a
traditional IRA or nondeductible contributions to a Roth IRA. Both types
of IRA have advantages and disadvantages. Traditional IRA distributions
are generally fully taxable and must begin after the individual reaches
age 70-1/2. Roth IRA distributions are tax-free if certain requirements
are met. An individual who works past age 70-1/2 can contribute to a
Roth IRA. Distributions from Roth IRAs are not required to begin after
the individual reaches age 70-1/2.
persons also have the option of setting up a retirement plan – called a
“Keough” plan – that enables them to set aside more money than an IRA.
If the person has employees, they must also be covered under the plan.
AGE DISCRIMINATION IN
Stith, a senior trial attorney with the Equal Employment Opportunity
Commission and frequent contributor to this publication.
It is increasingly common for senior citizens to delay their
retirement or to work in post-retirement jobs to supplement a fixed
income. Despite more than four decades of federal and state laws
prohibiting age discrimination, such discrimination still exists in
the job market.
The federal Age Discrimination in Employment Act of 1967 (ADEA)
applies to employers with at least 20 employees and protects
individuals, both applicants and employees, age 40 and older from
discrimination in hiring, promotions, terminations, and the terms
and conditions of employment. This law applies to private employers,
employment agencies, labor organizations, state employers, and
federal employers. The State of Missouri also prohibits age
discrimination against those 40 to 70 years of age under a law known
as the Missouri Human Rights Act (MHRA). Missouri’s law applies to
private and state (but not federal) employers with at least six
employees. Individuals alleging age discrimination at work may file
a charge with the Equal Employment Opportunity Commission (EEOC) or
the Missouri Commission on Human Rights (MCHR). A charge filed with
one agency is considered “dual” filed with the other.
The EEOC enforces four other laws: Title VII of the Civil Rights
Act of 1964 (prohibiting discrimination based on race, color, sex,
pregnancy, national origin, and religion); the Americans with
Disabilities Act or ADA (prohibiting discrimination based on
disability); the Equal Pay Act or EPA (prohibiting pay
discrimination based on gender); and the Genetic Nondiscrimination
Act of 2008 or GINA (prohibiting or severely restricting the use of
genetic information in the workplace). With the exception of GINA
protections, Missouri’s anti-discrimination law generally prohibits
the same types of discrimination. This article focuses primarily on
Discrimination and Retaliation
Age discrimination can take many forms. For example, an
advertisement expressly seeking applicants under age 40 (e.g.,
“young faces sought”) could be a violation under the ADEA and the
MHRA, unless the job plainly requires a much younger person, such as
a job modeling children’s clothing. Most age discrimination is less
obvious. An employer may pass over older employees to promote less
qualified under-40 employees, or terminate older employees while
hiring younger workers to perform the same duties. If you believe
that you are experiencing age or other prohibited discrimination,
whether as an applicant seeking a position or as a current employee,
then you should report such discrimination to the employer and
contact the EEOC or MCHR about filing a charge. Federal and Missouri
laws also prohibit retaliation for reporting or opposing what you
reasonably believe is discrimination, or participating in the EEOC/MCHR
investigation process. If you believe your employer has retaliated
against you, then you will want to include an allegation of
retaliation in your charge. If such retaliation occurs as a result
of your filing a charge, then you can amend that charge to add
retaliation or file a second charge.
Older Workers Benefit Protection Act
The ADEA has a special provision known as the Older Workers Benefit
Protection Act (OWBPA). Under the OWBPA, if an employer offers an
age-protected employee a severance package in return for the
employee’s waiver of ADEA rights, the employer first must advise the
employee in writing to consult with an attorney. The employer must
give the employee at least 21 days to consider the offer. In a large
termination program, sometimes called a reduction-in-force or RIF,
age-protected employees must be given a minimum of 40 days to
consider the offer. In a RIF, the employer must inform such
employees in writing of the group or class of employees offered such
exit incentive, eligibility factors required for participation,
applicable time limits, job titles and ages of all eligible
employees, and ages of those employees in the same job or
organizational unit not offered the exit incentive. Even if an
age-protected employee signs such a waiver, that employee has up to
seven days to revoke it. It is highly recommended that an employee
timely consult with an experienced attorney before signing a waiver
and accepting a severance package. If you sign a waiver but still
have concerns about discrimination, contact the EEOC.
Important Charge-Filing Deadlines
victim of possible age or other prohibited discrimination may file a
charge with the EEOC or MCHR. To preserve a possible claim under
MHRA, the employee must file a charge within 180 days of the last
alleged act of age discrimination. To preserve a possible claim
under the ADEA, the employee must file a claim within 300 days of
the last alleged act of age discrimination. This “last alleged act”
is usually the date on which the employee first learned of the
alleged discrimination, even if the result of discrimination will
not occur until later. For example, if an employer told an employee
on January 1 that she would be terminated on February 1, then the
employee should file a charge within 180 days of January 1, rather
than February 1, which is more likely to preserve rights under
Missouri anti-discrimination law, and within 300 days of January 1,
which is more likely to preserve rights under federal
a Charge of Discrimination
contact the EEOC in person or by telephone about filing a charge,
then you will be interviewed by an investigator about the alleged
discrimination. There is no fee charged for being interviewed or
filing a charge. The EEOC does not allow you to file charges
online, but does allow you to submit an online “EEOC Assessment
System” questionnaire, which asks general questions to help you
decide whether the EEOC can assist you and specific questions about
your employment situation. To learn more about the EEOC, the laws
enforced by the agency, and information on filing a charge, go to
the EEOC website.
If you decide
to file a charge, then the EEOC intake investigator typically will
draft a charge for your review and signature. If you decide to file
a charge, the EEOC will “docket” the charge and your employer (or
prospective employer if you were an applicant) will be promptly sent
a copy of the charge and given an opportunity to respond.
Occasionally, a charge may be dismissed quickly if, for example, it
does not appear to state a violation of the laws enforced by the
EEOC or it was filed more than 180 (with the MHRC) or 300 days
(with the EEOC) after the last alleged discriminatory act. In most
instances, the charge will be investigated. Never hesitate to
contact the investigator about the progress of
the investigation or to provide additional information about
documents or witnesses.
What Happens after
a Charge is filed?
investigation may take several months or even longer because of the
backlog of charges filed with the EEOC. As part of the EEOC’s
processing of a charge, you and the employer may be asked to
participate in a free mediation to help settle the matter before the
investigation is completed. If either party declines, then no
mediation will occur. Even if no mediation takes place, the EEOC
investigator may ask the parties to consider settlement or help the
parties negotiate a settlement. If the charge is not settled during
the investigation period, then the EEOC may conclude after an
investigation that a violation of the law has occurred and issue a
“determination” letter to the charging party and the employer. At
that point, the EEOC will attempt to “conciliate” a settlement
between the parties. If that conciliation effort is not successful,
then a notice of right-to-sue will issue to the charging party.
Please keep in mind that the EEOC determines that a violation of law
occurred in fewer than 10 percent of all charges investigated. Even
if the EEOC does not find a violation based on your charge, you will
still have the right to file suit as explained below.
If the charge
is not settled and the EEOC has completed its investigation, then
you will receive a written “notice of right-to-sue,” which allows
you to sue regardless whether the EEOC concluded that unlawful
discrimination occurred. You also may request a notice of
right-to-sue before the investigation has been completed. If such a
request is considered premature, then the investigator will explain
why there may be a delay in issuing you the notice of right-to-sue.
Once the EEOC has issued a notice of right-to-sue, then you have 90
days from receipt of the notice to file suit.
MCHR’s procedures for issuing a notice of right-to-sue under the
MHRA have undergone some changes in recent years, but are generally
more restrictive. For instance, MCHR may administratively close a
charge file without issuing a state notice of right-to-sue. In
addition, MCHR typically will not issue such notice until at least
180 days have passed since the charge was filed, although one may
obtain a notice at an early point under some circumstances. If MCHR
closes the file without issuing such notice, then in an employee’s
right-to-sue under state law may be forfeited. If MCHR does issue a
state notice of right-to-sue, then a suit alleging age
discrimination (or any other prohibited discrimination) under
Missouri law must be filed within 90 days of the date on which MCHR
mailed the notice, not 90 days of the date on which you received it.
In addition, under the Missouri law, the suit must be filed within
two years of the last alleged discriminatory act.
The procedures followed by the EEOC and MCHR, and the laws the two
agencies enforce, are complex, varied, and subject to differing
court interpretations and legislative amendment. Because this
article primarily addresses age discrimination under federal law.
Anyone considering filing a charge with either agency is strongly
advised to seek legal advice from an experienced attorney.
Should I File Suit?
Even with the
most compelling evidence, filing a lawsuit can be a great risk. Few
cases get to a jury; a significant percentage are settled or
dismissed. In addition, under the ADEA damages are limited. One may
seek back pay. For example, if a court or jury concludes that an
employee who earned $50,000 per year was terminated because of age,
then that employee may obtain back pay, $50,000 or a pro-rated
amount for the period since his or her termination, less any interim
money earned at another job held since the unlawful termination. For
a willful ADEA violation, the employee may obtain double back pay,
also known as liquidated damages, but it can be very difficult to
Missouri law can be more generous than the ADEA. In addition to back
pay, a prevailing employee may be able to obtain damages for
emotional distress and possibly punitive damages, which are meant to
deter and punish the employer for committing unlawful
discrimination. In deciding whether to file suit, you must keep in
mind that litigation can be very demanding and continue for many
months, or even years. It can exact a huge personal cost in both
money and emotional (and even physical) health.
Guidance for State Government Employees
Employees who work for Missouri state government, school districts,
municipalities, and similar public entities cannot sue their
employers under the ADEA according to the U.S. Supreme Court’s
interpretation of that law, but may be able sue such employers in
state court under the Missouri Human Rights Act. Despite this
restriction on ADEA lawsuits, state employees still may file charges
of age discrimination with either the EEOC or MCHR.
Not every person 40 or older who is not hired, terminated from a
job, denied a promotion, or treated worse than other employees in
the workplace has an age or other viable claim of discrimination. An
employer may discharge or refuse to hire or promote a senior citizen
for any reason, as long as it is not based on age or some other
basis prohibited by law (e.g., sex, race, national origin,
disability). Even if the “real” or main reason for the employer’s
decision was age, such discrimination may be very difficult to
prove. Lawsuits can be extraordinarily costly in terms of dollars,
time, and emotional demands. They may take many months or years to
settle or go to trial. Some claims are dismissed without a trial.
As noted above, any applicant or employee who may have experienced
discrimination is strongly advised to contact an experienced
attorney before filing a charge or lawsuit. Most attorneys will
charge a fee for consultation but that fee can be the most important
investment you make. For private attorney referral information,
please contact the EEOC at the numbers below, the Bar Association of
Metropolitan St. Louis at (314) 621-6681, or the local affiliate of
the National Employment Lawyers Association/NELA-St. Louis at (314)
These federal and state laws, including their deadlines and
procedures concerning age and other forms of unlawful
discrimination, are complex and confusing, subject to frequent
legislative amendment, and sometimes inconsistent with each other.
To find out more information on employees’ rights under the ADEA and
other laws enforced by the EEOC, visit
the EEOC’s web site. You may contact the EEOC by calling
314-539-7800 or going in person to its St. Louis office at 1222
Spruce Street, 8th Floor, St. Louis, MO 63101. For information on
Missouri law, visit
the Human Rights Commission's website
or call the state agency at 877-781-4236.
Illinois Human Rights Act
While this article does not address one’s rights under Illinois
anti-discrimination law, such information may be obtained at
the website of the Illinois
Department of Human Rights
or by calling 312-814-6200 (Chicago), 217-785-5100 (Springfield), or
618-993-7463 (Marion). Charges against employers located in southern
Illinois generally may be filed with the EEOC’s St. Louis office.
By Barbara J.
Gilchrist, J.D., Ph.D., a professor at St. Louis University School
of Law, and a founder of this publication.
Editor's Note: The information in this booklet on Medicare is designed to
give a brief description of this program, what the benefits are, and
how one qualifies. This information is current as of November, 2010,
but is subject to change at any time. For more detailed information,
call the Social Security Administration Office.
What Is Medicare?
Medicare is a
health insurance program administered by the Centers for Medical
Services (CMS). It is designed to help meet the hospital and other
medical costs of senior citizens (age 65 or older) and some disabled
persons under 65.
PART A – Medicare Hospital Insurance
To be eligible for
Part A (hospital insurance), you must be:
65 or older and
qualify for Social Security benefits; or
have received Social Security disability benefits for two years;
dialysis or need a kidney transplant because of permanent kidney
0-29 quarters for Social Security purposes may receive Part A
coverage by paying a premium of $461. Persons not entitled to Social
Security or Railroad Retirement, but who have at least 30 quarters,
may pay a premium of $254.
Part A covers
some of the costs of a hospital stay, as well as care in a skilled
nursing facility or in one’s home (by a home health care agency)
after leaving the hospital. Part A also covers hospice care. Doctor
services are not covered by Part A.
PART B – Supplemental Medical Insurance
Part B covers
some doctor and outpatient services, medical supplies, and some
for Part B (supplemental medical insurance) is the same as for Part
A, but a monthly premium of $96.40 for those already enrolled and
$110.50 for new enrollees must be paid. (About 4% of enrollees with
income in excess of $85,000 and couples with income in excess of
$170,000 will pay a higher premium.) The Part B premium will
automatically be taken out of your monthly Social Security check
unless you ask not to be in the program. It is important to note
that if one delays in signing up after becoming eligible to enroll,
the monthly premium will increase each year of the delay.
PART C – Medicare Advantage
Advantage refers to private managed care health plans for
Medicare recipients that have been available since 1997 in some
geographic areas. These plans may take the form of HMOs, PPOs, or
fee-for service. All of them restrict the patient’s choice of
Advantage plans provide benefits equivalent to Parts A and B and may
offer a range of supplemental benefits to cover out-of-pocket costs
such as deductibles and co-insurance. These plans also include
coverage for those Medicare beneficiaries who exhaust their hospital
inpatient benefits. Some plans offer coverage for other benefits not
covered by Medicare, such as routine eye exams, annual physicals,
hearing exams, eyeglasses, or hearing aids. Medicare Advantage plans
must also offer a Medicare Part D plan.
PART D – Prescription Drug Benefit
Part D is the
newest benefit and the most complicated in terms of choosing the
best plan. Medicare beneficiaries may enroll either with a
stand-alone prescription drug plan or a Medicare Advantage plan that
offers prescription drug benefits. Monthly premiums are estimated to
be $46.58, but will vary between plans. Which medications are
covered will also vary between plans. Low-income persons will be
eligible for Part D without paying a premium or by paying a sliding
scale premium depending upon income and assets.
Enrolling and Switching Plans
enrollment period for Medicare begins three months prior to the
person’s 65th birthday and lasts seven months. There is an annual
general enrollment period from October 15 – December 31 when you can
switch plans – from regular Medicare to a Medicare Advantage plan or
vice versa or from one Medicare Advantage plan to another. These
changes take effect January 1 of the next calendar year.
Services and Supplies Covered by Medicare
hospital services are covered by Part A, if the costs are considered
reasonable and the services are necessary: bed and board; nursing
and related services; use of hospital facilities; natural and
synthetic drugs, supplies, appliances and equipment normally
furnished by the hospital; operating and recovery room costs; and
other diagnostic or therapeutic items or services normally furnished
by the hospital, including rehabilitative services.
skilled nursing home services are covered by Part A on a limited
basis: nursing care; bed and board; physical, occupational,
respiratory and speech therapy; medical social services; and drugs
and other health services generally provided by a skilled nursing
facility. Medicare does not pay for custodial care.
services are covered under Part A, but the patient pays 5 percent of
the cost and must forgo all other benefits – except for physician
services and treatment of conditions not related to the terminal
Part B of
Medicare covers the following services and items: physician
services; hospital outpatient services and supplies furnished as
incidental to physician services (such as diagnostic x-ray tests and
x-ray, radium and radioisotope therapy); and other medical and
health services (including surgical dressings, splints, and casts;
rental or purchase of durable medical equipment; ambulance services
and prosthetic devices).
prevention and screening services have been added to Part B. An
annual wellness visit, flu and pneumonia shots, mammograms, certain
cancer screenings, glaucoma screening, two annual foot exams and
nutrition therapy for diabetics are all covered under Part B.
Occupational therapy and speech therapy may also be covered for
persons with Alzheimer’s disease.
covers the rental or purchase of durable medical equipment (DME)
used in a patient’s home under Part B. A physician must prescribe
the equipment. DMEs include hospital beds, wheelchairs, hemodialysis
equipment, oxygen tents, crutches, canes, and many others. Before
purchasing or renting, the beneficiary should find out whether the
supplier is approved by Medicare. If a recipient enters a nursing
home, any DMEs provided by Medicare will not be covered. Therefore,
it will be necessary for the patient to return these items or pay
for them as out-of-pocket expenses.
Both Part A
and Part B of Medicare pay for a limited amount of home health care
administered by a public or private home health care agency. Home
health services covered include: part-time skilled nursing care,
physical therapy and speech therapy. Medicare can also pay for
occupational therapy, part-time services of home health aides,
medical social services, and medical supplies and equipment provided
by the agency if skilled nursing care, speech or physical therapy is
supplemental medical insurance helps pay for medically necessary
physician and related medical services no matter where they are
received – whether at home, in the doctor's office, a clinic, a
nursing home or hospital. Related services include medically
necessary supplies such as wheelchairs and hospital beds, as well as
outpatient services such as laboratory tests and X-rays. Physical
and occupational therapy, mental health services, and mammograms are
What Medicare Pays and What You Pay
health insurance program pays for all of the costs for a visit with
the doctor or a stay in the hospital. Medicare, although a public
program, is no different. Both Parts A and B have initial
deductibles that the patient must pay before Medicare pays anything.
Both parts also have co-insurance payments, which go into effect
after Medicare has paid all costs up to a certain limit. When that
limit is reached, the patient must pay a certain amount of the
remaining costs. Medigap policies and Medicare Advantage plans can
be effective ways to handle those costs not covered by Medicare.
program measures the use of services under Part A (hospital
insurance) through benefit periods – also called spells of illness.
The first benefit period begins the first time you enter a hospital
after the insurance goes into effect. A new benefit period begins
when you enter the hospital again, as long as it is at least 60 days
after the last discharge from a hospital or other facility providing
skilled nursing or rehabilitation services. There is no limit to the
number of spells of illness (benefit periods) you can have.
provides up to 90 days of hospital care for each spell of illness.
However, there is a deductible charged at the beginning of the
hospital stay and co-insurance after 60 days, both of which are the
patient’s responsibility. Recipients also have 60 lifetime “reserve
days,” but they are not renewable for the next spell of illness. The
hospital deductible is $1,100 for each spell of illness. If you are
in the hospital for more than 60 days, the co-insurance amount is
$275 per day. After 90 days of hospitalization, if you choose to use
reserve days, the co-insurance amount is $550 per day. Medicare pays
the remainder of all covered expenses.
Part A also provides up to 100 days of care in a skilled nursing
facility (SNF) per spell of illness, but the patient must be
admitted within 30 days after leaving the hospital and have been in
the hospital for three consecutive days prior to entering the SNF.
In order to be covered, the care in the SNF must be for the
condition for which the patient received care in the hospital or for
a condition that emerged while the patient is receiving care in the
SNF following hospital care. The condition must also be one that
requires daily skilled nursing or skilled rehabilitation services
that cannot practically be provided anywhere except a SNF.
all covered expenses for the first 20 days. For days 21-100, there
is a daily co-insurance of $137.50. Medicare also pays for home
health care visits if skilled nursing care or rehabilitation that
can be provided in the home is required.
Part B, the
supplemental medical insurance part of the Medicare program, has a
basic payment rule for all charges for covered medical expenses.
There is a $155 deductible for all approved charges in each calendar
year. Medicare then pays 80 percent of all additional approved
charges for covered medical expenses. The patient is responsible for
the remaining 20 percent of the costs of all covered medical
expenses over that amount. If there are charges that are not
approved by Medicare, these will be the patient’s responsibility,
unless that physician has agreed to accept assignment. This means
that the physician has agreed to only charge the amount approved by
Part D, the
prescription drug benefit, has an annual deductible of $310 and
co-payments that vary depending upon the total annual drug costs
above the initial $310. For costs between $310 and $2,830, the
co-pay is 25 percent (up to $630). Costs greater than $2,830, but
less than $6,440, are entirely the responsibility of the enrollee.
Costs in excess of $6440 will have a co-pay of 5 percent or $2.50
for a generic drug and $6.30 for a brand name drug.
Part D Out-of-Pocket Costs Example:
($2830-310) x 25 percent
($6440-2,830) x 100 percent
the coverage gap (donut hole) in 2010 will receive a rebate check
for $250. Each year for the next 10 years the gap will be decreased
until the co-pay is at 25 percent.
Medically Reasonable and Necessary Charges
only those medical bills that they determine to be "medically
reasonable and necessary." Medicare uses a system called "Diagnostic
Related Groupings" (DRGs) to determine what hospitalization expenses
are reasonable and necessary for each "spell of illness" incurred. A
simplified explanation of DRGs is as follows: When admitted to the
hospital, a recipient is assigned a category within the list of
possible DRGs. Medicare pays a predetermined amount to the hospital
based on this category no matter how long you are in the hospital
and no matter what the actual costs of care.
Prior to the
time Medicare runs out for a "spell of illness," the hospital must
notify the recipient in writing that a discharge is upcoming. If
that discharge is based on the lapse of Medicare coverage and the
patient feels that a longer hospital stay is necessary, the patient
may appeal the Medicare decision to the Quality Improvement
Organization (QIO), which decides if Medicare was correct in
determining coverage. By law, the QIO must decide the appeal within
three working days of its receipt. If you disagree with the QIO
decision, it can be appealed similarly to any other Medicare
decision. If a patient is in the hospital and wants to appeal the
Medicare decision regarding length of stay, the patient should
contact a social worker at the hospital concerning how to file an
Medicare coverage continues until the QIO makes its decision. If
Medicare coverage runs out (i.e., the DRGs are exceeded), the
patient will then be responsible for paying for the care. If the
patient pays for the care and subsequently wins the appeal, Medicare
will pay retroactive benefits.
How Insurance Payments Are Made
It is not
necessary to send in any bills for care received from a
participating hospital, skilled nursing facility, or home health
agency under Medicare Part A. In addition, a hospice provider will
normally make the claim for care received by a recipient and
Medicare will pay its share of the costs directly to the proper
agency. The recipient will receive a notice explaining what was paid
under Medicare coverage.
made two ways under Medicare Part B. Medicare can pay the doctor or
medical service provider directly, if that is agreed upon, or can
pay the recipient directly. Direct payment to a doctor is called
assignment. Under the assignment method, the doctor or health
service provider completes the Request for Medical Payment form and
submits it. Medicare then pays the doctor or provider 80 percent of
the Medicare-approved charge (which is often less than the doctor
charges) after subtracting that portion of the $155 deductible that
has not yet been met. The advantage of this method is that the
participating doctor or health care provider agrees to make the
Medicare-approved charge his or her total charge – even if the
actual charge is higher.
If the doctor
or supplier does not agree to the assignment plan, the doctor still
must file the Request for Medical Payment form. The medical
insurance payment will then come to the patient. Remember that under
the "payment-to-patient" plan, the doctor or supplier can bill for
the actual charge, even if that charge exceeds Medicare's approved
charge. If that happens, the patient is responsible for the amount
over the approved charge.
payment plan is chosen under Part B, the patient or the patient’s
Medigap policy still must pay directly the doctor or health service
supplier the 20 percent of the approved charge, plus any unpaid
portion of the $155 deductible. The patient should always ask the
health care provider to provide an itemized bill.
Services Not Covered
Even though the Medicare program has broad coverage, there are many
services and supplies that Medicare does not pay. These charges
include: custodial care in a nursing home, residential care
facility, or in your own home; services not reasonable or necessary,
as defined by Medicare; services for which the patient has no legal
obligation to pay; services paid for by a governmental agency;
personal comfort items; routine checkups; full-time home nursing
care; hearing aids; eyeglasses and examinations for eyeglasses;
drugs; and medicine purchased for oneself with or without a doctor's
prescription. In general, Medicare does not pay for cosmetic
surgery, dental care, private rooms, orthopedic shoes, or most
chiropractic services. Supplemental plans (Medigap) or Medicare
Advantage may cover some of these items.
Qualified Medicare Beneficiary (QMB), Specified Low-Income Medicare
Beneficiary (SLMB), and Qualified Individual Program (QI1)
a program under which Medicaid acts as a supplemental (Medigap)
policy for Medicare recipients whose income is higher than that
allowed for Medicaid eligibility, but below the federal poverty
level plus $20. In Missouri, the QMB program is handled through the
Missouri Department of Social Services, Family Support Division (FSD),
and the state pays the Part A and Part B Medicare premiums,
deductibles, and co-insurance charges for eligible recipients. To
qualify, an individual’s income must be less than $903 per month and
assets must be valued at less than $6,600. To qualify as a married
couple, combined income must be less than $1215 and assets must be
valued at less than $9100.
with income up to $1,083per month and couples with income up to
$1,457 may qualify for the SLMB1 program where the
state pays the Part B Medicare premium. The SLMB2 program
also pays for the Part B Medicare premium for individuals with
income less than $1,219 and couples with income less than $1,640.
For both SLMB1 and SLMB2, assets must be valued at
less than $6,000 for an individual and $9,100 for an eligible
The income limits change annually in April.
Inquiries about each of these programs should be made to the
local FSD office.
Right of Appeal
recipient disagrees with a Medicare decision on a claim, by law he
or she is entitled to ask for a review. Generally, a Medicare appeal
is only possible after care has been received and coverage denied.
overview of the appeals process is available
at Medicare's Appeals and Grievances web page.
preprinted Medicare appeal forms for each stage in the process.
These are available from the fiscal intermediary, the carrier, or
any Social Security Administration district office. Beneficiaries
may also call 1-800/MEDICARE or go online to
Online Forms web page.
The use of
these forms is not mandatory, however. All coverage denial notices
and Medicare appeal decisions received by a beneficiary include
instructions on how to request the next stage of appeal and the
applicable time limits. Beneficiaries may use their MSN (Medicare
Summary Notice) as an appeal form by simply circling the item that
they wish to appeal, writing in why they disagree, signing the form,
and sending it to the address on the MSN.
Other rights may also be available, including appeal to
the federal courts. If a patient determines that an appeal is
warranted, it may be wise to consult with a friend, relative, or an
attorney regarding the appeal process. Check the listing at the end
of this book for legal assistance information.
If You Need More Information
on Medicare cannot present all of the information that may be needed
regarding hospital and medical insurance programs. One resource for
more information is Missouri’s Free Senior Health Insurance
Assistance Program, which uses the name CLAIM. It can be
reached at 1-800-390-3330.
source for information on benefits, eligibility, or any Medicare
question is the local Social Security Administration Office. In
addition, you may wish to obtain the Medicare Handbook,
available from that office. CMS also has a publication that may be
helpful, which is entitled Medicare and You 2010. Information
on obtaining the publication is available from CMS at 800-633-4227.
In addition to contacting CMS for general information on Medicare,
the Medicare intermediary in your area may be contacted.
MEDICAID (Mo HealthNet)
By Julie Berkowitz,
Esq. Ms. Berkowitz is certified as an elder law Attorney by the
National Elder Law Foundation. She is a sole practitioner who focuses
her practice on MO HealthNet issues, Disability and Estate Planning,
Probate issues, Guardianships and Conservatorships.
Editor's Note: The
information in this booklet on MO HealthNet is designed to give a brief
description of this program, what the benefits are and how one
qualifies. This information is current as of January, 2011, but is
subject to change at any time. For more detailed information call your
local Family Support Division office or seek the advice of an elder law
28, 2008, the MO HealthNet program in Missouri was renamed “MO HealthNet”.
MO HealthNet is a joint Federal-State program designed to help pay some
of the costs of health care for financially needy individuals. The
Family Support Division (FSD) of the Missouri Department of Social
Services administers the MO HealthNet program in Missouri. The FSD
decides who is eligible for the program based on federal and state
The MO HealthNet
program is different from the Medicare program. The Medicare program is
run by the Social Security Administration. There are no financial need
requirements for eligibility for the Medicare program. Most Medicare
recipients have a red, white and blue card. Medicare recipients can also
receive MO HealthNet assistance if eligible. Missouri MO HealthNet
recipients have a red MO HealthNet card.
The MO HealthNet
eligibility rules and applicable regulations are extremely complex. If
an individual is interested in applying for MO HealthNet benefits, he or
she may benefit by seeking the assistance of an attorney who is
knowledgeable in MO HealthNet eligibility issues.
Expenses Covered by MO
HealthNet will cover the following: physician's services, some
prescription drugs, emergency ambulance services, hospice services,
in-patient and out-patient hospital services, laboratory and x-ray
services, periodic diagnosis and screening, and some home health
There is a
procedure that allows a MO HealthNet recipient to make a "medical
exception" request for MO HealthNet to pay for a service not included in
the MO HealthNet program. If the MO HealthNet Division (formerly the
Division of Medical Services (DMS)) denies coverage for a procedure or
service, a recipient may call the Recipient Services' number on the back
of the MO HealthNet card to ask about a medical exception. A person's
doctor must provide documentation to establish that a service or
equipment should be provided and is medically necessary.
Some drugs and
services require prior authorization under the MO HealthNet program.
Usually medical services providers (for example, the doctors) will apply
for prior authorization. Certain prescriptions, however, require prior
authorization forms completed both by the patient and by the doctor. In
most cases, the MO HealthNet office will notify the medical service
provider, not the individual recipient, of its decision to grant or
withhold prior approval of payment. If an individual learns from the
medical service provider that MO HealthNet approval was withheld, one
may appeal the decision. (See next section for how to appeal.)
HealthNet benefits will help to cover the cost of nursing home care for
those who qualify. A Vendor MO HealthNet recipient must be in a "MO
HealthNet certified bed", in a nursing home. Generally, a Vendor MO
HealthNet recipient must use his or her income to pay for the nursing
home care, and MO HealthNet benefits cover the balance to the nursing
No provider of
medical services can be forced to accept payments from MO HealthNet if
he or she does not wish to do so. If the health care provider will not
accept MO HealthNet, one has two options: change the health care
provider or pay with one's own funds.
Health Net Programs
There are a
number of different MO HealthNet programs that provide assistance with
health care costs for individuals who meet certain medical and
financial requirements. This section outlines some of the main MO
HealthNet programs for elderly and disabled individuals.
Eligibility for a MO
In order to
qualify for a Missouri MO HealthNet program, an individual:
must be a U. S.
Citizen or "qualified alien," and
?must be a Missouri
must be 65 years or
older (elderly), blind or permanently and totally disabled and
must meet the
financial eligibility requirements of the MO HealthNet program to
which he or she is applying.
MO HealthNet for Basic
Medical Care (Medical Assistance- Non-Vendor)
Assistance - Non- Vendor is the MO HealthNet program that provides
coverage for certain Medical expenses for elderly, blind or disabled
individuals. This program does not provide benefits to cover nursing
home costs. See MO HealthNet for Nursing Home Care.
must meet all of the requirements set forth above under Eligibility for
a MO HealthNet Program.
applying for Medical Assistance must have incomes below the program's
income standards. These amounts change every year. The figures below are
current as of January, 2011.
An unmarried individual must have monthly income of $768 or
less, after allowable deductions.
A married individual and his or her spouse must have a
combined monthly income of $1033 or less, after allowable
incomes above the applicable limit, but who meet all of the other
eligibility factors, may still qualify for assistance, He or she will be
given a "spenddown" amount. This is like a monthly deductible. See "Spenddown
MO HealthNet ".
limits are not tied to the federal poverty level and have never been
increased. They do not change every year like the income limits.
individual must have no more than $999.99 in non-exempt assets.
individual and his or her spouse must have less than $2,000 in
combined non-exempt assets.
Exempt vs. Non-Exempt
The $999.99, or $2,000 if married, asset limits apply
only to non-exempt assets. Certain assets are considered exempt and
their value is not counted in the applicable asset limit total.
The assets that are exempt and that do not count
include: the applicant's home (up to an equity limit of $505,500) and
furnishings, one motor vehicle, personal effects, burial lot, certain
income producing property, and either a pre-paid irrevocable funeral
plan or up to $1,500 in cash surrender value in life insurance.
"Spenddown MO HealthNet"
If an individual
has a "spenddown" amount, he or she is responsible for a certain amount
of medical expenses each month, before MO HealthNet benefits will cover
other medical costs. The spenddown amount is based upon the individual's
income. An individual's spenddown amount is calculated by totaling
monthly income from all sources, and applying certain deductions as
(I) Subtract the first
$65 of any ` income (wages or self-employment income) and then
subtract one-half of the remainder. For example: the deduction is
((earned income -$65) ÷ 2).
(2) Total the adjusted
earned income and all unearned income, such as Social Security,
SSDI, private pensions and VA benefits.
(3) Subtract payments
for any medical insurance premiums paid (including Medicare and private
(4) Subtract $20
(personal income exemption).
(5) Compare the
resulting net income to the program's income limit. (currently $768 for
a single individual and $1033 for a married couple)
The remainder, after
all allowable deductions, is your monthly spenddown amount
Note: If there
are minor children in the household, do not include their income or
expenses in the spenddown budget.
An individual can meet his or her spenddown in one of
by paying a monthly
premium to the State, so that one has no break in coverage; or
incurred medical expenses to his or her caseworker each month.
If you choose
the second option, your MO HealthNet coverage for each month will become
effective the day bills meet or exceed the spenddown amount. (Bills
given to the caseworker to meet spenddown will not be paid by MO
If you are
eligible under the spenddown program, your case will stay open whether
or not you meet spenddown in any one month. You will receive an invoice
each month that you can use to pay your spenddown "up-front" for the
next month. When you receive an invoice, you are being billed for the
next month's premium in advance. However, you can also pay your premiums
retroactively for certain months.
If you do not
meet spenddown for six consecutive months, you will no longer receive
invoices, but your case will still stay open.
MO HealthNet for
Nursing Home Care
(Vendor MO HealthNet)
MO HealthNet may
cover some of the cost of nursing home care. The eligibility
requirements are slightly different than stated above for basic Medical
Assistance eligibility. In addition certain transfer of assets rules
apply. MO HealthNet for nursing home care is referred to as "Vendor MO
In addition to
the non-financial requirements set forth under Eligibility for a MO
HealthNet Program, an individual must reside in a " MO HealthNet vendor
bed" in a nursing home that is eligible with the State to receive MO
There are no
actual income limit requirements for Vendor MO HealthNet. However, as a
practical matter, an individual's income must be less than the monthly
cost of his/her nursing home care. Otherwise MO HealthNet benefits are
usually not needed.
An individual is
required to use his or her income (minus allowable exemptions) to pay
for his or her nursing home costs. Vendor MO HealthNet benefits cover
the remaining nursing home and uninsured medical costs.
These asset limit
requirements apply to non-exempt assets. For information on what is
an exempt asset, see "Exempt vs. Non-Exempt Assets."
individual must have no more than $999.99 in non-exempt assets.
individuals, both of whom reside in a nursing home must have no more
than $2,000 in combined non-exempt assets.
whose spouse does not also reside in a nursing home, must have no
more than $999.99 in non-exempt assets. However, the spouse who does
not live in the nursing home is entitled to a "Community Spouse
Resource Allowance" (“CSRA”).
Community Spouse Resource Allowance.
The FSD will compute a
"Community Spouse Resource Allowance" for the spouse of a married
individual applying for Vendor MO HealthNet assistance. The Community
Spouse Resource Allowance is calculated during a Division of Assets
Division of Assets Assessment, the FSD caseworker determines the
non-exempt assets that the individual and the spouse own individually,
together, or with someone else. These non-exempt assets are totaled
together. The total amount of these non-exempt assets is divided. The
Community Spouse Resource Allowance is calculated by dividing the assets
in half and applying a minimum and maximum standard amount.
spouse will be entitled to one-half of the non-exempt asset total as
long as that amount is greater than the minimum, and no more than the
maximum. If the total assets are less than the minimum, then the
community spouse will be entitled to the minimum. If one-half of the
non¬exempt assets is more than the maximum amount, then the community
spouse will only be entitled to the maximum amount. The minimum and
maximum standard amounts are increased each year. As of January 2011,
the minimum Community Spouse Resource Allowance amount is $21,912 and
the maximum amount is $109,560.
Once the couple's
total non-exempt assets are equal to or are less then the couple's
Community Spouse Resource Allowance, the spouse in the nursing home will
be eligible for benefits.
In addition to
the Community Spouse Resource Allowance, a community spouse is also
allowed to keep the couple's exempt assets. Also, the community spouse's
income is his or hers to keep and is not a factor in the other spouse's
situations the community spouse may be entitled to additional income
from his or her spouse and/or be entitled to an increased Community
Spouse Resource Allowance. Such a situation occurs when the community
spouse has low income (according to State standards) and/or has high
living expenses or extraordinary costs. An Administrative Appeal is
required in order to increase the community spouse's portion of assets.
The assistance of an elder law attorney is strongly recommended in these
circumstances to ensure that the community spouse receives the maximum
amount to which he or she is entitled.
Transfer of Assets
regarding transfers of assets were changed by the federal government in
the beginning of 2006 in legislation entitled the Deficit Reduction Act.
The new law became effective in Missouri as of February 8, 2006, and
applies to transfers occurring after that date. Transfers occurring
prior to February 8, 2006, are governed by the prior law.
Under the current
law, if a MO HealthNet applicant gives away or transfers property for
less than fair market value within 60 months (5 years) of applying for
vendor MO HealthNet, that individual will be ineligible for MO HealthNet
benefits for a certain period of time (penalty period). The length of
the penalty period will be based upon the amount or value involved in
the transfer of property.
period will begin to run when the MO HealthNet applicant has no more
than $999.99 in non-exempt assets, is otherwise eligible for benefits,
and has applied for MO HealthNet benefits. Essentially, the penalty
period will run from the date of application and not the date of
Consult an elder
law attorney before making such a transfer, and before filing a MO
HealthNet application. The date that an applicant files a MO HealthNet
application has legal significance. In addition, some transfers are not
subject to penalty. There are limited exceptions.
MO HealthNet Estate
individual can own certain exempt assets, such as a home, while
receiving Vendor MO HealthNet assistance, the Department of Social
Services has a right of recovery against the MO HealthNet recipient's
estate at his or her death. However, there are certain exceptions and
circumstances in which the State does not have a legal right to such a
claim. Potential beneficiaries of a deceased MO HealthNet recipient who
have been contacted by the State regarding a recovery claim should
consult with an elder law attorney to determine their rights.
In addition to a
right of recovery against a MO HealthNet recipient's home after his or
her death, the Department of Social Services also has a right to file a
lien against the MO HealthNet recipient's home while the MO HealthNet
recipient is still alive. Just as in the case of a post-death recovery
action, the Department of Social Services does not have this right in
every case. There are limited exceptions.
If Your MO HealthNet
Application is Rejected
If an individual
is denied MO HealthNet eligibility, that individual has a right to an
appeal. The appeal is initiated by making a request to the caseworker or
other FSD personnel for a hearing. This request must be made within 90
days of the denial of the MO HealthNet application. It is advisable to
get the help of an attorney if you are requesting an appeal.
If an individual
is receiving MO HealthNet benefits and FSD attempts to terminate or
reduce said benefits, the individual may also appeal that decision. If
the individual appeals within 10 days of notice of the termination or
reduction, the individual has a right to continue receiving full
benefits pending the outcome of the hearing. If the individuals continue
to receive full benefits during the appeal process and lose the appeal,
the state can seek repayment from the individual for those expenses.
Kaufmann, administrator of Normandy Nursing Center, a position she
has held for 14 years. Prior to that, Ms. Kaufmann was the assistant
director of the St. Louis Long Term Care Ombudsman Program, and she
has sat on various boards and committees concerning the elderly.
Kerry has been involved with various projects with Legal Services of
Eastern Missouri since serving a paralegal internship there in 1987.
If you are
looking for a nursing home for yourself, a friend or family member,
this section hopefully will help you choose a long-term care
facility that will meet your needs, medically and financially. You
will also be able to use the information provided to handle problems
or concerns that may arise in the nursing home during residency.
The Department of Health and Senior Services (formerly
the Division of Aging) provides licensure and inspections to all
long-term care facilities in Missouri. When inspecting a nursing
home, the Department of Health and Senior Services considers all
aspects of the resident’s living environment, in accordance with the
state law and regulation. This not only includes nursing care and
procedures, but also housekeeping, dietary needs, safety standards,
resident funds, activities, and social services.
Federal regulations, set forth under the Centers for
Medicare and Medicaid also cover the facilities that are in the
Medicare and/or Medicaid programs. Therefore, the Department of
Health and Senior Services inspects nursing homes based on both
state and federal requirements.
Nursing homes receive two unannounced inspections every
year and may be subject to other inspections based upon complaints
received through the Elder Abuse Hotline (1-800-392-0120). Residents
and families are encouraged to participate in the inspections.
Levels of Care
There are four levels of nursing home care that are
licensed and regulated by the State of Missouri based on services
offered and staffing available.
Skilled Nursing Facilities (SNF) provide a
skilled level of nursing care and treatment for individuals
requiring 24-hour-a-day care by licensed nursing personnel,
including: physician-ordered treatments; medication administration;
IV therapy; physical, speech and occupational therapy; and
specialized care. This is a step away from the hospital, although
some hospitals have distinct parts that are set up as SNFs within
the hospital itself. A patient at the hospital has the choice of
using the hospital’s SNF or choosing an outside long-term care
Many SNFs accept Medicare and Medicaid as payment.
Those facilities are not only licensed by the State of Missouri, but
are also certified by the Medicare and Medicaid programs and are
regulated under those guidelines.
It is the choice of the facility whether or not to
participate in either the Medicare or Medicaid program. The facility
may also choose the number of beds offered through either program.
Even though a facility may have Medicare or Medicaid certified beds,
that does not mean that there is always one available for a resident
when that individual enters the facility or depletes assets.
Intermediate Care Facilities (ICF) also provide
24-hour protective oversight and nursing care, including
distribution of medications. These facilities are a step down from a
skilled nursing facility and provide more custodial care. Medicare
does not pay for custodial care. However, Medicaid will pay for
custodial care if financial requirements are met and the resident is
in a Medicaid-certified bed.
Residential Care Facility II (RCF II) provides
more of a boarding home-like atmosphere for the resident with
protective oversight. The facility provides all meals, helps in the
bathing, dressing and grooming of the resident, and also distributes
medications. An RCF II can provide medical care for a resident
returning from the hospital and needing minimal care for a temporary
period of time.
Residential Care Facility I (RCF I) is the one
of the least restrictive living arrangements for a resident in
licensed long-term care. It provides protective oversight, meals,
medications, and minimal grooming.
Assisted Living is a new type of living
arrangement that has become very popular in the past few years. This
is an independent type of living arrangement and is now licensed or
regulated by the Department of Health and Senior Services.
Assisted living usually consists of the resident
occupying an apartment and being provided with one or more meals a
day, light housekeeping and laundry services. It does not include
medical care. However, many places offer some personal aide
services. At this time there is no financial aid provided for
residents in assisted living facilities except for some personal
aide services for residents who qualify.
Choosing a Nursing
Choosing a nursing home for yourself or someone else
can be a difficult and frustrating task. To make matters a little
easier, you need to first look at what the needs are of the
individual. Consider some of the following questions:
Is this going to be a long or short-term stay?
Does the individual need therapy?
Is the facility able to meet any of the special needs
of the individual?
Are there other residents who have the same needs as
the individual, people he/she can relate to?
Is the facility easily accessible for family members
and friends to visit?
By understanding the needs of the potential resident,
you can better match up the facility to the individual.
Be honest about the needs of the potential resident and
the expectations of both the resident and the family. If the
resident has wandered away from home several times, it is important
for the facility staff to be aware of this so safeguards can be put
into place to protect the resident. Remember, the nursing home is
not a hospital nor is it set up to do private nursing. The nursing
home must provide services within the constraints of the law and
financial capabilities. Not every nursing home is going to be right
for every resident.
Once you determine a resident’s needs, you can begin
searching for a facility. Some of the attributes that you want to
look for in a long-term care facility are:
1) Licensure: Make sure the home is licensed and
that the license is in good standing with the State of Missouri. Ask
to see the most recent inspection report and make sure that whatever
was cited has been corrected.
2) Nursing Service: Talk to the nurses and make
sure that the level of nursing services matches the resident’s
needs. If there is a closed or locked unit, find out if this unit is
appropriate for the individual.
3) Physician: Determine if your physician will
provide services at the particular nursing home. Not all physicians
go to nursing homes to provide services. If the attending physician
does not go to the facility, you may need to make provisions for the
resident to see the physician in the physician’s office. Each
facility has a number of physicians associated with it. The resident
may choose from one of the physicians offered through the facility
if he/she wishes to, or continue to use their private physician.
Each facility will have a designated medical director.
The medical director is the physician who will oversee all resident
care in the facility and is responsible for ensuring the other
physicians are providing proper care.
4) Finances: The facility should be able to provide
you with a list of all charges involved, including items not paid
for by Medicare or Medicaid. If the resident is eligible for
Medicare and/or Medicaid, the facility should be able to provide
information on both programs and assist the resident as needed.
5) Dietary Services: Try to stop by the facility
during a meal. See if the meals look appetizing and attractive. Pay
attention to whether or not the other residents are enjoying their
meals and the entire dining experience. Ask to see a copy of the
planned meals and find out if special diets can be provided.
The dietary manager should work with the residents on
individualizing their menus to meet the needs of the resident,
6) Therapy: If the resident is going to need
physical therapy, occupational therapy and/or speech therapy, check
out the therapy department. Find out when therapists are available
and what special equipment they have that can help meet the
resident’s needs. If the resident is Medicaid only, the facility
must still provide the therapy needed. Find out if there is an
active restorative program in the facility that will continue with
therapy after the resident is discharged from the actual therapy
7) Medications: Most nursing homes have a contract
with a pharmacy to provide medications. The resident has the choice
of using the facility pharmacy or another of their choice. If the
resident chooses another pharmacy, that pharmacy must meet the
guidelines set by the nursing home as far as packaging and delivery
needs. The facility must also develop a plan for supplying emergency
medications when required.
8) Activities: Each nursing home should have a
program that provides the residents with daily activities.
Activities are important because they help to keep the resident
alert and involved. Talk with the activity director and other
residents about the facility’s program. Ask to see a calendar of
Activities are an important part of anyone’s life and
even more so in a facility. The residents’ individual preferences
should be taken into consideration, including access to telephones,
newspapers, magazines and other items that will help maintain the
9) Safety: As you walk through the facility, check
for safety issues. Make sure the handrails are on the walls tightly,
wet floor signs are used, evacuation plans are posted, etc. The
latest state inspection report will provide information on any
safety issues including fire safety.
10) Cleanliness: The facility should have a
housekeeping department that keeps the resident areas, including
bedrooms and bathrooms, neat and clean.
11) Policies: Talk to the admissions coordinator or
social worker about any facility policies that could affect the
resident’s stay including level of care and financial issues.
12) Access to Administration: The nursing home staff,
including the administrator, social workers, the bookkeeper, the
director of nursing and other department heads should be accessible
to residents and family members. Ask about their hours and
availability in off-hours.
It is important to ask the facility about care plans
and when the resident’s care plan meeting will be held. The care
plan is formed in a meeting when all disciplines work together on
mapping a plan to meet the resident’s needs. This plan should be
discussed with the resident and family so that all parties involved
understand what the goals are and what is to be expected.
Nursing homes are supposed to provide a homelike
environment for the resident. That means that the staff should show
a friendly attitude to both residents and visitors. They should try
to make the residents feel good about themselves and find ways for
the residents to attain their highest possible goals. The staff
should create a respectful and caring environment. Watch resident
reactions to the staff and other individuals.
If possible, talk with other residents in the
facility. They are your best indicator of what life in the facility
is like. Look and see if the residents look happy, clean and neat.
As you tour the facility, look into the residents’ rooms and see if
they are individualized, not institutionalized.
Lists of nursing homes can be provided through the
of Health and Senior Services, P.O. Box 1337, Jefferson City,
Support Division, your local office;
Area Agency on
Aging, your local office;
Program, your local office;
individual may be in or a physician with whom he or she may be
organizations often carry lists of appropriate facilities, and
there are now listings you can receive through online services.
While a resident is living in a nursing home, the
resident is entitled to a dignified existence and to exercise his or
her rights without fear of interference, coercion, or reprisal.
Federal and state laws guarantee that, as a nursing
home resident, you have the right to:
Be free from
physical, verbal, mental or sexual abuse, or mistreatment or
neglect of any type;
Be free from
any chemical or physical restraints without a physician’s order
that shows the restraint is treating a medical symptom and is
only approved for a specific period of time;
your care, including choosing a doctor, being informed of your
care and treatment, and any changes in your health or
about your life that are important to you, such as what clothes
you wear or when you bathe;
services based on your individual needs and preferences;
Manage your own
financial affairs, including giving the facility written
permission to hold any monies for you, spending your money as
you choose, and receiving a quarterly financial report if the
facility is to hold your funds;
informed of your rights during your stay and any rules that are
set by the facility;
Review all your
medical records upon request;
Have access to
the latest facility inspections without requesting them;
Privacy for all
treatments, telephone calls, visits, mail, resident meetings and
all of your records;
refuse visits from friends or relatives;
24 hours per day from family members; and
Remain in the
facility (see section on transfers/ discharges).
These rights are guaranteed under both state and
federal laws. Residents who feel that their rights have been
violated should talk to a representative from the facility first.
Each nursing home needs to have a written process in place to handle
The process should be one that takes into consideration
the resident’s physical, medical and emotional condition. A specific
staff member, such as the social worker, should be identified to the
resident as to whom to make the complaint. The complaint should be
dealt with to the resident’s satisfaction within a reasonable amount
If the complaint is not resolved to the satisfaction of
the resident, there are additional steps a resident can take. The
resident may file a complaint with the ombudsman Program in his/her
area. The Ombudsman Program, usually found in conjunction with the
local Area Agency on Aging, can help mediate between the resident
and the facility to find an adequate solution. This is often the
best solution, in that the Ombudsman is a trained resident advocate
The alternative is to contact the Department of Health
and Senior Services at 1-800-392-0210. Depending upon the
seriousness of the complaint, it may not be resolved immediately.
Any complaint that is not risking the welfare of the resident may be
delayed by the Department of Health and Senior Services until the
next inspection, which may be months away.
Should the complaint pertain to abuse or neglect, the
Department of Health and Senior Services, 1-800-392-0210, should be
notified immediately. The resident’s health and safety could be in
jeopardy. By notifying the Department of Health and Senior Services,
an inspector can take the action necessary to protect the resident
Discharges from a
It is the
resident’s right to remain in the nursing home for as long as they
choose. A facility may only discharge a resident if:
The transfer or discharge is necessary for the resident’s
welfare and the resident’s needs cannot be met in the facility;
The resident’s health has improved sufficiently so the
resident no longer needs the services provided by the facility;
The health and safety of the individuals in the facility is
The facility issues an emergency discharge;
After notice, the resident fails to pay for a stay at the
The facility ceases operation.
facility discharges a resident, they must provide the resident with
a 30-day written notice of their intent to discharge. In this
notice, the resident must be the given the right to appeal the
discharge. The appeal is made to the Division of Legal Services in
Jefferson City. A resident may represent himself or herself at the
hearing or have a friend, family member, or legal counsel represent
him or her. An attorney will represent the facility. It the
responsibility of the facility to provide enough information to show
that the resident cannot remain in the facility.
facility transfers the resident based on an emergency discharge, the
facility must immediately notify the resident as to their intent not
to take the resident back and the reason, plus give the resident the
right to appeal.
appeal process, the resident and facility will be provided the
results of the hearing in written form. If the resident wins the
appeal, the resident has the right to remain in or return to the
facility. Should the resident lose the appeal, the resident needs to
find placement somewhere else within 10 days. The facility must help
the resident to relocate if this is the case. No resident can be
transferred until a safe and appropriate place is found for that
There are a
few different ways to pay for nursing home care. However, not every
nursing home accepts every type of payment. You must make sure the
nursing home meets not only the medical needs but also the financial
needs of the individual.
With a three-day prior hospitalization, a resident may be eligible
for Medicare coverage for up to 100 days. The first 20 days are
completely covered under Medicare and all services are paid for.
After the twenty-first day, there is a co-insurance payment per day.
This can be paid privately by the resident or paid through a medi-gap
insurance plan. Missouri Medicaid no longer pays this co-insurance.
pays for a resident in a Medicare bed and only covers those
residents who need a high level of care, such as tube feeding,
ventilators, IVs, or therapy. It does not cover custodial care and
there is no guaranteed coverage time. Medicare can cover between 1
to 100 days. Medicare coverage is dependent upon what services the
resident requires and continues to require. The facility must
provide appropriate notice as to when the resident will be taken off
Medicare. The decision to take the resident off Medicare can be
appealed by the resident. The nursing home should provide the
resident with information on this appeal process.
The Missouri Family Support Division (FSD) administers the Medicaid
Vendor program, which is designed to pay for the care of nursing
home residents when they do not have the resources to pay
themselves. Not every nursing home is Medicaid-certified. Therefore,
you must make certain that the facility has a Medicaid bed if this
payment source is, or may become, a necessity.
Medicaid program, all resident needs are provided for, including
room and board and medical needs. The facility must provide a
resident with a list of any services or items not provided for under
Medicaid. The resident should turn over the amount of money listed
by FSD as his or her surplus. For example, if a resident’s Social
Security is $500 per month, the resident needs to turn over $470 to
the nursing home as his/her share of payment and is allowed to keep
$30 for personal needs. Failure to turn the surplus over to the
nursing home could result in a discharge letter for non-payment.
the nursing home becomes the representative payee of the Social
Security check and provides to the resident the $30 personal needs
allowance. Social Security will notify the resident if the facility
applies to be payee representative.
for Medicaid payments, you must:
Be in a
(assets) less than $1,000 (a house is no longer considered a
resource if you move from your home to the hospital and then to
the facility, or from your home into a long-term care facility);
minimum 21-point medical qualification; and
insurance policy not greater than $1,500 (cash surrender value).
Instead, an individual can have a prepaid burial plan of the
same value or an irrevocable burial trust in a “reasonable
and Married Couples: There are special provisions under the
Medicare Catastrophic Coverage Act of 1988 that provide for married
couples when one must enter a long-term care facility. Upon entering
a Medicaid-certified bed, you and/or your spouse may request a
“division of assets” assessment for the local Division of Family
provision, a married couple’s assets are divided by the caseworker.
The amount the community spouse will be permitted to retain will
depend on the total amount of assets. Once the institutionalized
spouse’s share is spent down to under $1,000, he/she would then be
eligible for Medicaid, and the community spouse has his/her share
for his/her needs while living in the community, plus a monthly
allotment if eligible.
Medicaid-certified resident in a nursing home is entitled to equal
treatment just as if he/she were a private-pay resident. Admission
policies must not require that a resident “private-pay” for a
certain number of months before applying for Medicaid. Transfer or
discharge cannot be based upon Medicaid eligibility unless the
facility does not accept Medicaid or there are no Medicaid beds
available. Should a resident feel that he/she is being discriminated
against because of Medicaid eligibility, contact the local Legal
Services office, as well as the local Long-Term Care Ombudsman
office, seeking advice, information, and advocacy.
Supplemental Nursing Care (Cash Grant): This Medicaid program
partially pays for a resident’s care in either a licensed
residential care facility or a skilled nursing facility. You must
meet the guidelines (above) for Medicaid eligibility. Amounts paid
vary depending on the level of care of the facility.
Pay: If a resident is going to be paying privately for his/her
long term care, it is extremely important that he/she read the
nursing home contract, which should describe the daily rates, any
increases for levels of care, and specific costs for special
services or medical items. The facility should provide you with a
list of all these items and the costs involved. Private pay
residents need to consider the extra costs which may be charged to
them, including but not limited to pharmacy, physicians, labs,
x-rays and medical supplies.
Care Insurance: Many insurance companies offer long-term care
insurance policies. If a resident is using this as a form of
payment, make sure that the nursing home is informed and agrees to
accept the payment. Most long-term policies ask the facility to
provide monthly statements listing the resident’s level of care,
diagnosis, and special needs. The policy also may not pay the full
daily rate, so the potential resident needs to determine what
out-of-pocket expenses are going to be required.
Contracts: Although not as popular as they once were, many
facilities still offer life care contracts. A life care contract is
a binding agreement between the facility and the prospective
resident that usually calls for the facility to provide room, board
and other incidentals for the resident in consideration for the
resident’s assignment of property and money to the facility.
A life care
contract should only be entered into after careful consideration.
Consult an attorney and try to insert items in the contract that
expressly define the type of care and service that the facility is
to provide. If a contract is entered into with the belief that the
resident has an illness which will require care until death, or has
a possible terminal illness, it may be wise to insert a clause in
the contract which will allow for cancellation of the contract if
the person improves in health such that care will no longer be
needed at the facility.
considering a life care contract, it is important to get in writing
the facility’s responsibility to the resident should the resident
require a higher level of care than the facility can provide or in
the event that the facility should close. Either of these issues
could potentially become a problem if there is no guarantee from the
facility as to what steps the facility would take to provide for the
resident. It is always a good choice to have an attorney review any
contracts prior to signing them.
ABOUT LANDLORD-TENANT RELATIONS
By Mary DeVries
and John Ammann. John Ammann is the director of St. Louis University
School of Law’s Clinical Law Program. Mary DeVries is a staff
attorney with the Housing Unit of Legal Services of Eastern
Both landlords and tenants are often not informed
of the basic rights and responsibilities they have toward one
another. Tenants especially suffer as a result of this situation.
Some tenants pay illegally hiked rents or unknowingly agree to
premature termination of their leases. Such actions hurt elderly
fixed-income tenants more severely. The following are a few of the
basic duties of landlords and tenants.
Some Duties of the Tenant
Must pay rent on time.
Must keep apartment clean and dispose of garbage, rubbish, etc.
Must not deliberately destroy or damage the structure.
May not take on additional occupants or sublease without permission
of the landlord.
Must use plumbing and electrical fixtures in a reasonable way.
Must give written notice 30 days before the next rent is due when
leaving a month-to-month (no formal lease) tenancy.
Must not commit or allow the illegal possession, sale or
distribution of controlled substances upon the rented premises.
Duties of the Landlord
Must not turn off water, electricity or gas.
Must provide adequate heat in winter.
Must not lock tenant out or prevent tenant from entering or leaving
apartment. (A landlord needs a court order to legally evict a
May not raise rent during term of formal lease or without giving
30-day written notice before the next rent is due in a
Must keep apartment and public areas safe, secure, sanitary, and
in substantial compliance with the housing code. If the tenant
damages the apartment, the landlord may have to repair the
damage and charge the tenant.
If a tenant abandons the dwelling unit, the
landlord may have the right to enter and remove the tenant’s
belongings. The landlord has the right to do this only when the
tenant is 30 days or more behind on the rent and the tenant fails to
respond to the landlord’s notice to the tenant of the landlord’s
belief of abandonment. The landlord’s notice must be in writing and
mailed to the tenant by first class mail and certified mail.
Moreover, the landlord cannot claim abandonment if the tenant either
pays all rent due or responds in writing within 10 days of the
posting of the landlord’s notice that the tenant does not intend to
abandon the dwelling unit.
The tenant’s best protection from a landlord claiming
abandonment is to avoid getting behind in rent. If the tenant is
going to be absent from the unit while also being behind on rent,
the tenant should be sure to inform the landlord in writing that he
or she still intends to occupy the unit and it is not abandoned.
Moreover, if the landlord does send a notice claiming abandonment,
then the tenant must be sure to respond in writing and to explicitly
deny the allegations of abandonment (make and keep a copy of the
notice you send).
Foreclosure of Rental Unit
If the unit
you are renting is foreclosed, you have rights under recent federal
laws (these laws are temporary unless extended past December 31,
2014). In most cases, you have the right to finish your lease and
the new owner must honor your lease (including Section 8 voucher
leases). If you have a month-to-month lease, or less than 90 days
remaining on your lease, the new
owner must give you a 90-day notice requesting that you move.
Remember: the new owner cannot legally evict or lock out a
tenant without a court order.
When the Tenant Fails To Pay Rent
is going to be late with the rent or will not be able to pay rent
for a particular month, one should contact the landlord and let him
or her know about the problem and attempt to work together on a
payment arrangement. While the landlord is not obligated to accept
payments of less than what was originally agreed, notifying the
landlord in advance may help avoid problems.
the tenant fails to pay the rent for any month, the landlord can sue
the tenant in a rent and possession lawsuit. The tenant will
receive a summons notifying him or her that a lawsuit has been
filed. The summons will indicate when and where the tenant must
appear in court to respond to the lawsuit. Upon receiving the
summons, the tenant should contact a lawyer immediately. Do not
ignore the summons. If a tenant has been properly served the summons
and fails to appear in court
when the case is scheduled, the landlord may obtain a
judgment for rent and possession by default.
If there is rent due and the tenant pays it, along with court costs,
on or before the day of trial, the case will be dismissed. If the
court decides in favor of the landlord, the court may order the
tenant to pay back rent plus costs and to move out of the apartment
(this is an eviction order). The sheriff may forcibly remove a
tenant still in possession, usually as soon as 10 days after the
eviction order. The court may also order the tenant’s wages
garnished to satisfy a money judgment in favor of the landlord.
Remember: the landlord cannot legally evict or lock out a
tenant without a court order.
If a landlord wants a tenant to move out
for some reason other than non-payment of rent, the landlord may be
able to force the tenant to move from the property. If there is no
long-term lease, the landlord does not need a reason to end the
tenancy but must give adequate notice that the tenancy is to be
ended (30 days written notice for a month-to-month tenancy). If
there is a long-term lease, it will state how much notice must be
given, but by law it can be no less than 10 days’ notice. The lease
will also state what things constitute sufficient reason for the
landlord to terminate tenancy (i.e., tenant-caused damage to
premises, pets in apartment, etc.). If the tenant does not move out
when the tenancy is ended, the landlord can file an unlawful
detainer lawsuit to have the tenant evicted. The
tenant receives a summons, much as in a rent and possession action,
and there is a court hearing or trial (Do not ignore the summons –
contact an attorney immediately).
After a trial, the judge decides whether
the landlord properly ended the tenancy. If the landlord acted
properly, the court orders the tenant to move and may also issue a
money judgment. If the tenant does not move within 10 days, or other
court-ordered period of time, the sheriff may forcibly remove the
tenant. If the landlord did not properly end the tenancy, the tenant
can stay in the property. PLEASE NOTE: If the tenant stays in the
property after the tenancy is ended — an action called “holding
over” — the landlord may be entitled to double rent for each
day the tenant holds over if the landlord is successful in the
unlawful detainer action.
A landlord can charge no more than two months’ rent as
a security deposit. After a tenant moves, the landlord can keep and
apply the deposit to unpaid rent or other amounts owed or for costs
of repair and cleaning after the tenant moves. The landlord cannot
charge the tenant for repairing ordinary wear and tear to the
premises. It is a good idea to take photographs of the apartment
when you move in to document the condition of the apartment and to
take photographs of the apartment before one moves out to show that
no damage was done to the apartment.
must allow the tenant to attend a move-out inspection and either
return the full security deposit or provide a written list of the
reasons that all or part of the security deposit is being withheld.
This must be done within 30 days of the end of tenancy. If the
landlord does not do so, or wrongfully withholds any part of the
security deposit, the tenant can sue and recover up to two times the
amount that the landlord wrongfully withheld.
The landlord does not always have to pay
for repairs, especially tenant-caused damage. Before a tenant does
them or hires someone else to do them under assumption that the
landlord will reimburse, have the landlord agree in writing to pay
for the repairs.
If an apartment is found to be or suspected of
being substandard (in violation of housing codes), a tenant should:
Call the landlord and ask for repairs.
Make a written request of the landlord for repairs.
Call the health department or building inspector if the landlord
Contact a lawyer. (One may be able to withhold rent in some
situations, but it would be prudent, if not essential, to obtain
the advice of counsel first).
In some cases, the tenant has the right to
repair and deduct from the rent the cost of the repair. The tenant
has this right when the defective condition is a violation of a
local municipal housing or building code and the cost of the repair
is less than $300, or one-half the monthly rent, whichever is
greater, provided the amount may not exceed one month's rent. The
tenant must also have lived in the unit for at least six months, be
current on rent and other charges, and have cured any other lease
violations for which the tenant has received written notice. To
exercise this right, the tenant must put the landlord on notice of
the tenant’s intention to repair. The landlord must then fail to
respond to tenant’s notice within 14 days after being notified by
the tenant (if the repair is for an emergency, the tenant must wait
merely a reasonable period). If the landlord disputes the necessity
for the repair, the tenant must obtain a written certification from
the local building or health departments that the condition violates
a local or municipal housing or building code.
By Mary Devries. Mary DeVries is a staff attorney with the Housing
Unit of Legal Services of Eastern Missouri, Inc.
Public housing is rental housing owned and
operated by local public housing authorities using subsidies from the
U.S. Department of Housing and Urban Development (HUD). Residents pay
approximately 30 percent of their income for rent. Most housing
authorities operate public housing specifically designated for senior
citizens. Many senior citizen public housing developments provide
services such as meals, transportation and social events.
Eligibility: Only low-income
families, the elderly or disabled are eligible for public housing. Some
housing authorities give waiting list preferences to seniors. In many
parts of the state, there is an ample supply of public housing for the
elderly. Seniors should apply for housing with the housing authority in
their city if the municipality has its own agency, and at the county
housing authority, which may also operate public housing in areas where
the person is willing to reside. If you do not qualify for public
housing, the housing authority must notify you in writing, tell you its
reason for denial, and give you an opportunity for an informal meeting
to discuss and review the denial.
Section Eight Housing Choice Voucher
HUD funds a rental subsidy program known as
the Section 8 voucher program. The program is administered locally by
housing authorities or community action corporations.
This program helps low-income families and
individuals pay their rent. Once a family obtains a Section 8 voucher,
the family takes the voucher to any willing landlord. If the landlord
agrees to participate in the program, the landlord will sign a contract
with the housing authority. Under the program, the housing authority
pays the owner the difference between the rent tenants pay
(approximately 30 percent of their adjusted gross income) and the market
rent of the units.
Eligibility: In order to apply for
a Section 8 voucher, you must complete an application at the housing
authority. Based on your application, the housing authority will
determine if you are eligible. Only low-income families, the elderly or
disabled are eligible for vouchers.
If the housing authority determines that
you are eligible, the housing authority may put your name on a waiting
list if there are no available vouchers. The housing authority has
discretion to open or close its waiting lists as needed. If you do not
qualify for a Section 8 voucher, the housing authority must notify you
in writing, tell you its reason for denial, and give you an opportunity
for an informal hearing.
Through this program, HUD provides funds to
privately-owned apartment owners who lower the rent they charge
low-income families, elderly and disabled. The HUD rent subsidy is tied
to the unit. Some units have low fixed rental amounts while the rent
portion for other units changes when your income changes. Under the
project-based Section 8 program, your rental portion is approximately 30
percent of your monthly adjusted gross income. The apartment owner has a
contract with HUD through which HUD pays the owner the difference
between the contract rent and your portion. If you move, you cannot
apply the rent subsidy to a new unit. To locate project-based housing in
your area, you can search by zip code
at HUD's Section 8 web page.
In order to apply, you need to visit the management office for the
apartment complex that interests you. Based on your application, the
owner will determine if you are eligible. If you do not qualify for
project-based housing, the owner must notify you in writing, tell you
its reason for denial, and give you an opportunity for a meeting to
review its decision.
Low-Income Housing Tax Credit (LIHTC)
receives federal tax credits in return for preserving and renting a
certain percentage of the apartments to low-income tenants. The amount
of rent you pay is fixed and does not change just because your income
changes. Rent increases must be approved by the Missouri Housing
Development Commission (MHDC).
In order to apply, you need to visit the management office for the
apartment complex that interests you. The owner will determine whether
By Michael Ferry and Daniel Claggett.
Michael serves on the Board of Directors of the National Consumer Law
Center (where he received NCLC’s highest honor for “outstanding efforts
to strengthen and affirm the rights of low-income Americans through the
practice of consumer law”) and is the first St. Louis lawyer to be
elected to the American College of Consumer Financial Services Lawyers.
He has served on the Consumer Advisory Council of the Board of
Governors for the Federal Reserve System and as a consumer fellow of the
Uniform Commercial Code Committee of the Business Law Section of the
American Bar Association. Michael is the executive director of
Gateway Legal Services, Inc.(314-534-0404) – a not-for-profit legal aid
program that represents individuals in Social Security and Disability
matters. Before Michael helped found Gateway Legal Services he was a
long time attorney with Legal Services of Eastern Missouri (“LSEM”). Daniel
Claggett, manager of the Consumer Unit at LSEM, reviewed this section
for the current 18th edition.
Consumers of all ages are vulnerable to the fast pitch and hard
sell of professional sales people, whether door-to-door or on television
or radio. Even prudent consumers, in the face of attractive product
claims, need to remember the old saying: "If it's too good to be true,
it probably is."
Even though consumer protection legislation and favorable court
decisions help the consumer, your best protection is to be a
well-informed, careful buyer. Smart consumers know their legal rights,
look carefully at product claims, and demand satisfaction from their
This section will help make you a more alert consumer. Toward this
end, this section describes general information helpful in your consumer
purchases, specific facts you should know about particular types of
purchases, plus legal and informal remedies that you can use if you are
dissatisfied with a purchase.
Contracts and Credit Buying
Almost all major and even routine purchases that you make as a
consumer involve a contract between you (the buyer) and a merchant (the
seller). If you have ever purchased a car, hired a person to do repair
work, or bought a pair of shoes with or without a credit card, you have
made a contract with a seller.
Often a consumer contract involves a credit purchase and repayment
over a period of time. This arrangement is commonly known as "buying on
time" or "buying on credit." In effect, the store, dealer or company
from which you are buying lends you the amount needed to purchase the
desired item or service. You, in turn, agree to pay back the money, plus
a finance charge of some kind.
Note: Some banks, usually those charging a
membership fee for charge cards issued by them, will not impose finance
charges on credit purchases if you pay your balance in full each month.
Whenever you buy on time, be sure you know how much your total
cost will be. Make a budget examining your monthly income and expenses
(monthly debt payments greater than 20 percent of your monthly
income may lead to trouble) and future plans (for example, you may need
to replace a roof in several months) before you make a credit purchase.
Key Terms to Understand
The following is a glossary of credit buying terms with which you
should be familiar:
Cash Price: This tells you what an item or service would cost if you paid for it
completely in cash at the time you bought it.
Finance Charge: This is the cost of credit. It is the price you pay for the privilege
of paying over time. It is added to the cash price.
Annual Percentage Rate (APR): This is the cost of your credit expressed as a rate.
The lower the APR, the cheaper the credit. The higher the APR, the more
expensive the credit.
The Federal Truth-in-Lending Act requires persons and
businesses that regularly extend credit to tell consumers what that
credit will cost in the long run. When you buy on credit, you must be
told, among other things, the finance charge and the annual percentage
rate on the purchase you wish to make. If you have a credit card or
account, these disclosures may be made on or before your first use of
the card or account. Otherwise the terms of the credit purchase must be
disclosed with each purchase. Lenders that fail to make these
disclosures may be sued by their customers for twice the amount of the
finance charge, plus court costs and attorney's fees. If a security
interest was taken in the customer’s home, the customer may also be able
to undo the contract.
Key Questions To Ask Yourself
Before signing any sales contract, ask yourself these questions:
Do I know what I am buying?
Do I really understand the terms of the contract and my obligations
under the contract?
Am I making the common mistake of looking only at the size of the
monthly payment, or did I also look at the APR?
Can I buy a similar item elsewhere at a lower price?
Am I satisfied with the cost of credit charged on my purchase?
What kind of protection do I have in the way of guarantees and
warranties? (Buying something "as is" means no warranties.)
Basic Contract Do's and Don'ts
DO insist that the salesperson let you take home a copy of the
contract before you sign it.
DO NOT deal with a salesperson who refuses to let you take home,
prior to signing, a contract with the sales price, cost of credit, etc.,
DO NOT pay 100 percent for items or services you have not yet
DO show the contract to a friend or a lawyer if you have any
questions about its provisions.
DO NOT sign anything unless you have had time to read it carefully
(or have it read to you) and you fully understand what it says.
DO insist that all promises (guarantees and warranties) be put in
DO NOT sign a contract with blank spaces that are to be filled in
later by a salesperson.
DO keep copies of all contracts, payment records, and complaint
letters in a safe place.
Watch Out for Predatory Loans
Loans that are unreasonably expensive, charge overly high or
unnecessary fees, or are otherwise unfair or fraudulent in some way, are
often called “predatory” loans.
Perhaps the worst predatory loans are those associated with
refinancing of your house. This is because the consequences
loss of your equity, perhaps loss of the house itself –
can be so extreme.
Predatory practices come in many forms, but some of the more
Multiple refinancings, each one with more fees added on.
Very high interest rates.
Very high fees.
Fees for charges supposedly paid to third parties that were actually
Padded fees for charges paid to third parties.
Kickbacks paid by lenders to mortgage brokers for getting you to
agree to an interest rate that is higher than the rate the lender
would have been willing to give you.
Requiring credit insurance.
Falsifying loan applications.
Knowingly making loans on terms the borrower cannot afford.
Presenting different terms at closing from those the borrower had
been led to expect.
Creating a payment schedule with a “balloon” payment (a
larger-than-normal payment) at the end, without the borrower being
aware of it.
Before you refinance your house, there are many questions you
should ask the person arranging the loan. The Bar Association of
Metropolitan St. Louis has a “Before You Make the Loan” checklist that
you may find very useful. You can get a copy of the checklist by going
to the association’s web site (go to
the “For the Public” section), or by calling the association at (314)
Be sure to carefully read the “Good Faith Estimate” (“GFE”),
which your lender is required to
give you no
later than three business days after the lender receives your loan
application for a mortgage loan. The GFE will contain important
information about your loan, such as your interest rate, whether the
interest rate can change, and whether your loan has a balloon payment.
The GFE will also itemize and explain settlement charges for your new
loan. Federal law limits the circumstances and amount by which the
lender can change certain of these settlement charges at the time of the
Other high-cost loans include “payday” loans, “title” loans, and
“tax refund anticipation” loans. It is not unusual for such loans to
have annual percentage rates of more than 100 percent, and sometimes 300
percent or higher. Such loans can be very profitable for the lender, and
very expensive for you.
Even the most strong-willed consumer occasionally buys an unwanted
item from an enterprising door-to-door salesperson. If you change your
mind after he or she leaves with your money or a sales contract,
however, you can do something about it.
Both a Missouri law and a Federal Trade Commission (FTC) rule
allow you a three-day "cooling off" period during which you can decide
whether to cancel the sale or rescind the contract. You must do so by
sending written notice to the company or business before midnight of the
third business day after the date of the transaction. Keep a copy for
Missouri law does not require you to follow any particular format
in sending your notice to cancel, but the FTC rule involves a Notice
of Cancellation form which you should receive from the salesperson
along with copies of the sales contract or receipt of sale. You merely
sign and date one copy of the Notice of Cancellation and send or deliver
it to the company or business within three business days from the date
of the transaction. If possible, send this notice or a written letter of
cancellation by certified mail with a return receipt request.
Once the merchant receives the notice or letter of cancellation,
he or she has 10 days to refund any money received, return any documents
that you have signed, return any goods or property that you've traded
in, and inform you whether they will pick up or let you keep any items
that were left with you. If anything was left with you, you must return
it in its original condition. It is not your responsibility to ship the
items; the seller must pay postage. Otherwise, the seller must pick up
Note: The FTC rule and Missouri law does not
cover purchases under $25.
Consumers and Home Repairs
Whenever you hire someone to make repairs on your home, use
caution and shop around. Get two or three estimates to see who is
offering the best bargain. Also, check references before you hire. There
are a lot of "fly-by-night" operators. Also, check with the Better
Business Bureau to see if the contractor has unresolved complaints
After you decide upon a contractor, ask that your agreement be
written down. This can avoid a lot of trouble later on. Items such as
price and guarantees should be in writing to avoid arguments after the
work is completed.
If the contractor or a loan company is going to finance your home
repairs and takes a deed of trust on your home as collateral for
this loan, remember three things: (1) the contractor or loan company
financing the repairs must inform you that your house is collateral for
the work and that you have a right to cancel the loan without cost
within a specified period; (2) you usually have three business days
after you enter into the loan in which to cancel it (during which time
the contractor is not supposed to begin work); and (3) if you get
behind on your payments, you may lose your home to the contractor or
A contractor (the person with whom you, the homeowner, have
contracted to perform home repairs) may file a mechanic’s lien against
your house if you fail to pay for materials and/or labor for home
However, subcontractors and suppliers must have your
written consent before they can file mechanic’s liens against your
house. They will usually ask the homeowner to give written consent
before they do any work or supply any materials.
The written consent must be printed in 10-point bold type, must be
signed by you, and must say:
CONSENT OF OWNER
CONSENT IS HEREBY GIVEN FOR FILING OF
MECHANIC'S LIENS BY ANY PERSON WHO SUPPLIES MATERIALS OR SERVICES FOR
THE WORK DESCRIBED IN THIS CONTRACT ON THE PROPERTY ON WHICH IT IS
LOCATED IF HE IS NOT PAID.
Be very careful about signing a form like this.
In order to collect any money from you on those liens, the
contractor, subcontractors, or suppliers who have not been paid must
file a lawsuit against you.
In the court action, the contractor has to prove it is entitled to
the money. Once the lawsuit is filed, you will receive a summons that
usually tells you to appear in court on a certain date and at a set
time. DO NOT ignore the summons. If you or your attorney do not appear
in court at the appropriate time, a default judgment could be taken
against you. If you have paid the general contractor in full and you
have not given your written consent for a subcontractor and/or supplier
to file a lien, then you are not liable to the subcontractors and
but you still need to appear in court if you are sued.
Collection Activities and Garnishment
If you are paying for a product or service over time and you fall
behind on the payments, the loan company or bank may turn the debt over
to a collection agency. Remember that a collection agency cannot
use harassment to get the money. If you are called by an agency late at
night or if your friends are being bothered, report the company to the
Missouri Department of Finance (573-751-3242) and call an attorney.
Federal law protects consumers against some abusive tactics by debt
When loan companies, banks or collection agencies obtain court
judgments on debts you owe, they may garnish up to 25 percent (10
percent if you are head of the household) of your wages after taxes.
Furthermore, these creditors may attempt to take away your house, car,
or household furnishings. Some of this property is exempt, but you
should contact an attorney immediately if you face garnishment of your
property. You should also quickly file your request for any exemptions
to which you may be entitled with the sheriff who served the
garnishment. Social Security benefits and most pension benefits cannot
usually be garnished.
When something goes wrong with a product you have purchased, or if
a repair job that you contracted to have completed (for example, on your
car or house) was poorly done, you can seek satisfaction in a number of
ways short of a lawsuit. A thoughtfully prepared complaint made either
in person or in writing can be an extremely effective way of getting a
consumer problem solved, especially when that complaint is made to the
proper authority. A consumer can file a complaint with the Missouri
Attorney General’s office by phone (800-392-8222) or online
at the AG's website. Many problems
can be handled successfully through the use of this method. The use of
laws that give consumers the ability to cancel certain types of sales
contracts is another remedy you have at your disposal. Small claims
court is also available to consumers who believe that they have been
treated unfairly; the amount in dispute must be $3,000 or less. Better
Business Bureau arbitration can also be helpful (see below).
Complaints are most effective when they are accompanied by
receipts and other documents that help explain your case. If you contact
the store or business by mail, send your complaint letter by registered
mail and keep a copy for your records. Never send originals of
any receipt, contract or document. If you are making your complaint in
person, try to remain calm, but firm. Make sure that what you are told
makes sense to you.
If taking your complaint directly to the store or business does
not produce the satisfaction that you are seeking, then bring the matter
to the attention of the Better Business Bureau in your community or
contact the Missouri Attorney General's Office.
The Better Business Bureau (314-645-3300) offers a free service,
called arbitration, to settle disputes between consumers and businesses.
When all informal attempts to settle a dispute fail, you or the business
may enlist the aid of an arbitrator to resolve your differences. Both
you and the business must agree to this process, and any decision of the
arbitrator is legally binding upon the parties. Because the arbitration
hearing is informal, you don't need the services of an attorney, but you
may have one represent you. Contact the Better Business Bureau in your
area for more details about consumer arbitration.
Beware of contracts that let the creditor force you to take any
disputes to arbitration. Such contracts can cost you the right to jury
trial and many important procedural rights. Arbitration can also be more
expensive than court. Arbitrators are not required to follow the law,
and your right to appeal an arbitrator’s decision is very limited. You
have the right to request that the arbitration clause be stricken or
removed from the contract. If the creditor refuses, then you should
carefully weigh the risks and benefits of entering into such a contract
vs. walking away and searching for a creditor selling the same service
or product who will not insist upon the arbitration of disputes.
Small Claims Court
Missouri consumers who have not received satisfactory responses to
their inquiries and complaints about defective products and poor service
may seek relief in small claims court when their dispute involves $3,000
or less. The small claims court is a valuable tool to the consumer
because: (1) the court costs are minimal; (2) the procedure is informal;
and (3) you do not need an attorney to represent you (though you or the
opposing party may have one).
Before you decide to use the small claims court (or any court for
that matter), make certain there is no other way of settling your
dispute, short of a lawsuit. You may save yourself a lot of time, effort
and potential difficulties in litigation if you can solve your grievance
satisfactorily out of court. However, if you feel that you have tried
all other available avenues in your attempt to resolve your differences
and $3,000 or less is in dispute, take advantage of the small claims
To file a lawsuit, go to the Associate Circuit Court clerk in the
county where you live. If the person or business you are suing resides
in another county or if the purchase of the product or service was made
in another county, you should file your lawsuit in that county.
The clerk will give you a form to fill out and file, and will
assist you if you need help. The clerk will also answer any questions
that you may have about court procedures. However, it is not the clerk's
duty to help you decide the amount for which you are going to sue.
You (the plaintiff) should have with you the exact name and
address of the person or business you are suing (the defendant) when you
fill out the form to file your case. You pay a filing fee and you also
pay the cost of mailing the summons by registered mail or of service on
the defendant by the sheriff.
When you leave the courthouse, check to see that you know the
docket number of your case, the time and date that your case is to be
heard, and the location of the courtroom where you are to appear.
Here are some important points to remember when preparing your
Organize important materials (bills, receipts, letters, etc.) so
that you can make a complete and orderly presentation of your case
at the hearing.
Think over and make some notes on what you want to say so that you
can make a full but brief statement of the facts in your case.
Decide what witnesses, if any, you want to appear at the hearing.
Witnesses may be subpoenaed (compelled) if they are reluctant to
appear voluntarily and if they are important to the case.
Check with the court before the hearing to find out whether the
defendant has been served with the summons. If service has not been
made, the clerk can tell you about your options.
It is very important that you appear in court at the scheduled time
and place for your hearing. Failure to do so may result in your
lawsuit being dismissed by the court.
When you appear in court, do not be disturbed if the business or
person you are suing is represented by an attorney. The judge has a
responsibility to ensure that the proceedings remain informal, so your
lack of legal knowledge will not work against you.
Either side in a small claims case may request a new trial in
response to an unfavorable ruling. If you are dissatisfied with the
decision and want a new trial, you must act promptly. Requests for new
trials must be filed within 10 days. You may need the help of an
If you win damages, you face the task of getting the defendant to
pay. The defendant may voluntarily agree to pay you in a certain way —
all at once or in installments. Occasionally, a defendant who has lost
in court will not pay the judgment. When this happens, the court clerk
can help you complete the forms to garnish the wages or bank account of
the defendant. Other court procedures may be available to collect a
judgment, but they are difficult to pursue without the help of an
If you have a chance to settle the suit before the court hearing,
try to do so. Inform the court if this occurs and be ready to have the
case heard in the event the settlement negotiations fall through.
When all other remedies fail or if small claims court is not
available to you because the amount in controversy is more than $3,000,
you may want to pursue your case in a more formal court setting. If you
decide to do that, you should discuss the situation with an attorney.
For legal assistance information, see the reference section in the back
of this book.
Time Share Property
Senior citizens are frequently contacted by real estate developers
and resort communities offering time share plans for sale. In a "time
share plan," you buy an ownership interest in, or the right to use, real
estate or property for a certain period of time, usually for vacations
or other short periods of time, up to one year in length for any given
year. The real estate or property typically consists of condominiums,
apartments, lodges, cabins or hotel rooms.
Missouri has a statute protecting the rights of buyers of time
share plans. First, the buyer has five days after the purchase of a time
share arrangement to cancel the purchase. The cancellation should be
given in writing on a form that the seller must provide at the time of
the time share purchase.
Secondly, when the seller uses free offers, gifts, drawings or
other promotions as a method of soliciting you to buy a time share plan,
the seller must deliver any promised gifts or an acceptable substitute
gift or cash in an amount equal to the retail value of the gift offered
within 10 days of when promised. The seller must also maintain a list of
the names and addresses of all winners, which must be made available to
If the seller fails to provide the buyer with the promised gift or
cash, the buyer can sue and collect up to five times the value of the
most expensive gift offered, not to exceed $1,000 in addition to other
If the time share plan involves an exchange program in which time
share buyers may assign or exchange their property with other time share
owners, the seller must notify the buyer in writing of all information
relevant to the exchange program, including whether the exchange program
is voluntary or mandatory, the procedures for qualifying and doing
exchanges, and the names and addresses of all other time share programs
participating in the exchange program.
If you have questions about any time share program or feel you
have been cheated by a time share seller, contact the Consumer
Protection Division of the Missouri Attorney General's Office.
If you are dissatisfied with a service, a product or work done for
you, the first thing you should do is to notify the company, in writing,
of your complaints. If they do not satisfy your complaint, you may want
to contact a lawyer. Do not assume you can stop paying just because you
are dissatisfied. Get the advice of a lawyer first. A lawyer may be able
to help you overcome the effects of a bad bargain.
Missouri No Call Law
has a law that prohibits telemarketers from contacting residents at
home. In order to be protected by the law, you can register your
household with the Missouri Attorney General’s office by phone
(866-662-2551) or online at their
website. It is only necessary to
register your household once, but you must make sure to include all of
your home numbers if you have more than one line. The Attorney General’s
office submits names every three months, so it may take up to three
months for your name to get on the telemarketer’s No Call list. If a
telemarketer violates the No Call law by contacting you after your
registration is complete, you can report the telemarketer by phone or
electronically to the Missouri Attorney General’s office. A telemarketer
who violates the law faces a civil penalty of up to $5,000.
HEALTH AND LIFE INSURANCE
Michael Ferry is executive director of Gateway Legal Services, Inc., and
previously a long time attorney with Legal Services of Eastern Missouri,
Inc. Gateway Legal Services, Inc. (314-534-0404) is a not-for-profit
legal aid program that represents individuals in Social Security
Disability and SSI matters as well as various consumer law matters.
approaches retirement, insurance needs change. Additional health
insurance coverage may be needed or life insurance needs may decrease.
Choosing new insurance or deciding whether to continue a current policy
is an important decision. The best protection is to be well informed so
that insurance coverage is neither excessive nor inadequate.
For most people, life insurance assures the financial security of
dependents. It may also act as an investment. For someone who already
owns insurance and is wondering whether to continue the coverage or for
someone who wants to purchase a new policy, it is essential to know the
basic elements of life insurance.
refers to a policy under which one receives a certain amount of life
insurance coverage for a specified period of time — or term. There is no
cash value for the policy and the coverage ends at the end of the
specified term. For example, if someone has a term life insurance policy
that covers the policyholder until he/she reaches age 65, once that age
is reached the policy terminates and the policyholder will no longer
have coverage under that policy.
(also called straight-life or ordinary life) provides life insurance
coverage for the entire life of the policyholder. These types of
policies have a cash value that the policyholder may receive if he/she
decides to terminate the policy. The cash value will increase the longer
one holds the policy. Typically, whole-life policies are more expensive
than term insurance.
Some questions that one should ask when determining life insurance
Do others depend on
me for their financial support? If so, for how long will this
dependence be true?
In the case of my
death, will there be expenses that someone will need to pay? If so,
are there more economical arrangements that could be made rather
than purchasing a life insurance policy?
Is my primary
objective for obtaining a life insurance policy to leave money to
someone? If so, would my money be better spent by placing it in a
bank account or investments rather than used toward payment of
It should be kept in mind that the need for life insurance
decreases over time as children become independent. In addition, the
cash value of the insurance policy is usually quite low when compared to
the amount of premiums paid.
refers to the amount of coverage one has under a policy. For example, if
a policy has a face value of $5,000, the policy’s beneficiary will be
paid $5,000 if the policyholder dies while the policy is still in force.
Under some policies, additional coverage, often double the face value,
may be provided if the policyholder dies as a result of an accident. The
benefits of the policy will be reduced by the amount of any loans
outstanding against the policy.
refers to the amount of money one may receive by terminating or
borrowing against a whole-life insurance policy. Typically, unless the
policy is fairly old, the cash value of a policy will be less than its
face value. Each of the two methods of obtaining a policy’s face value —
terminating or borrowing against it — has its own advantages.
Terminating the policy allows one to receive the cash value, but
ends the coverage of the policy. If a policyholder chooses to terminate
coverage, the insurance company should be notified immediately.
Otherwise, if a policyholder simply stops paying premiums, the insurance
company will continue the coverage and deduct the premiums from the
remaining cash value and not actually terminate coverage until the cash
value is depleted.
a policy will continue the coverage, but allow the policyholder to
obtain a loan, usually at a low interest rate. It should be noted that
any outstanding loans at the time of death of the policyholder will
reduce the amount of insurance payment to the beneficiary.
The proper choice of health insurance involves careful
consideration of the costs and benefits. If you are currently receiving
or are eligible for Medicaid, you may not need to purchase additional
health insurance. Similarly, if you have insurance through a group plan
from a former employer, you may have all the coverage you need. Most
people who are covered by Medicare at most need supplemental health
coverage to help pay for costs that Medicare does not cover, such as
deductibles and co-insurance amounts. Many private insurance companies
offer supplemental (Medigap) policies, but such plans can be confusing
and also vary widely in value.
Most supplemental policies are designed to only cover Medicare
deductibles and co-insurance costs. They exclude the same types of
coverage that are excluded by Medicare. Terms or phrases in a health
insurance policy such as “medically necessary” or “customary charge”
mean that the policy does not pay the actual difference between what
Medicare pays and you are charged, but only the deductibles and
co-insurance based on what Medicare determines it will pay. This is most
important for Part B, doctor and outpatient costs, because hospitals
generally cannot charge the patient more than what Medicare pays. Also
keep in mind that a physician who accepts “assignment” has agreed not to
charge patients more than what Medicare determines should be charged,
but the patient is still responsible for 20 percent of the charge.
Example: A doctor’s bill is received for $600. The
Medicare-approved charges for the physician’s services are $450.
Medicare Part B will pay 80 percent of the Medicare approved charge (80
percent of $450 = $360). A supplemental insurance policy will pay the
balance (or 20 percent) of the Medicare approved charge. Therefore, the
supplemental insurance would cover $90 (20 percent of $450), but the
patient would have to pay $150, the difference between the actual charge
and the Medicare-approved charge (unless the doctor accepts assignment).
These questions may be helpful when comparing available
supplemental policy cover the deductible (currently $1,132) that
must be met before Medicare will kick in for the first 60 days of a
Does the policy
cover the amount per day (currently $283) that Medicare will not
cover if the hospital stay lasts between 61 and 90 days?
Does the policy pay
the amount per day (currently $563) that Medicare will not pay if a
hospital stay is more than 90 days, which requires the policyholder
to use some of the lifetime reserve days?
Does the policy
cover medical and hospital costs if the policyholder is hospitalized
more than 150 days, under which circumstance the policyholder can no
longer receive Medicare?
Does the policy pay
the amount per day (currently $141.50) that Medicare will not pay
for a stay in a skilled nursing facility that is between 21 and 100
Does the policy
cover the costs of staying in a skilled nursing facility for more
than 100 days, under which circumstance a Medicare recipient can no
longer receive Medicare?
Does the policy pay
the annual deductible (currently $162) that must be met under
Medicare Part B?
Does the policy
cover the full 20 percent of reasonable (or covered or necessary)
charges that are not covered under Medicare Part B?
Does the policy
cover costs that Medicare may not consider to be reasonable and
Does the policy
cover costs that are not currently covered under Medicare, such as
prescription drugs and medicines, hearing aids, dental care, routine
exams, or custodial care in a nursing home?
Remember, it is Medicare Part B costs that need to be
supplemented. Policies that offer amounts up to $50,000 (or more) in
hospital protection are often not advantageous. In most cases, one would
have to be hospitalized for “medically necessary” services for more than
six months in order to actually benefit from the stated offer in the
refers to private managed care health plans for Medicare recipients that
have been available since 1997. Medicare Advantage plans provide all the
same benefits as Medicare, but are also similar to Medigap policies in
that they offer a range of supplemental benefits to cover out-of-pocket
costs, such as deductibles and co-insurance, as well as coverage for
those Medicare beneficiaries who exhaust their hospital inpatient
benefits. Some plans also offer coverage for other benefits not covered
by Medicare, such as prescription drugs, routine eye exams, annual
physicals, hearing exams, eyeglasses, or hearing aids. It should be
noted that most Medicare Advantage plans have reduced these supplemental
benefits in the past year. In addition, many companies are withdrawing
from the Medicare Advantage program, which means that many members will
have to return to regular Medicare and may need a Medigap policy.
Qualified Medicare Beneficiary (QMB)
is a program under which Medicaid acts as a supplemental (Medigap)
policy for Medicare recipients whose income is higher than that allowed
for Medicaid eligibility, but below the federal poverty level plus $20.
In Missouri, the QMB program is handled through the Missouri Department
of Social Services, Family Support Division (FSD) and the state pays the
Part A and Part B Medicare premiums, deductibles, and co-insurance
charges for eligible recipients. Those currently receiving Medicaid may
also be eligible for QMB benefits; inquiries should be made to the local
By Kerry Kaufmann,
who is administrator of Normandy Nursing Center, a position she has held
for 14 years. Prior to that, Ms. Kaufmann was the assistant director of
the St. Louis Long Term Care Ombudsman Program, and she has sat on
various boards and committees concerning the elderly. Kerry has been
involved with various projects with Legal Services of Eastern Missouri
since serving a paralegal internship there in 1987.
Today’s financial environment has caused homeowners to
consider refinancing their homes to cover day to day living expenses or,
in extreme cases, working with lenders to save their homes from
foreclosure. Be alert and be aware!
Always work with a reputable lender. Contact an
attorney, financial planner or a bank officer before considering
If foreclosure is the issue, first consult the primary
lender and ask about the options available. Some lenders may consider
working with the homeowner by reducing interest rates or by making other
arrangements that would allow the homeowner to keep the home. If this is
not an option, contact an attorney.
Recently there have been lenders offering to purchase
homes in foreclosure from the homeowner for a small percentage of what
the home is actually worth. These lenders promise to allow the
homeowners to either purchase the home back at a lower interest rate or
rent the home back at a low rental fee.
Once a home is transferred, there is no responsibility
for the new owner to provide for the previous owner. Therefore, these
schemes do nothing but entice desperate homeowners to sell their homes
for pennies on the dollar and broken promises.
Predatory lending means imposing unfair and/or abusive
loan terms on borrowers, often through aggressive sales tactics,
deception, or taking advantage of a borrower’s lack of understanding. In
the case of the elderly, this practice is more common with those who are
refinancing their homes.
Predatory lending usually includes one or more of the
following: an excessively high interest rate, a large number of
“points,” a large “balloon” payment after two or three years, prepaid
life insurance, unnecessary closing costs, and “loan flipping.”
Unnecessary closing costs can include processing fees, underwriting
fees, broker fees, documentation preparation fees, and administrative
fees. Loan flipping is when the loan is refinanced several times with
the promise of cash or reduced payments each time by the broker or
lender, when in fact the individual is not benefiting and the equity is
being significantly reduced.
These practices are commonly seen in situations where
the elderly have a large amount of equity built up in their homes and
are faced with unexpected home repairs or medical bills. Lenders or
brokers persuade the elderly to refinance their home to “consolidate”
these bills. This often leads to the repeated refinancing of mortgages,
which in many instances serves no purpose other than to generate higher
fees for the brokers and/or lenders.
The broker or lender will make promises to the
homeowner that, by refinancing the mortgage, various bills will be paid
off and/or that their monthly payments will drop significantly. However,
the outcome is usually a higher interest rate, overpriced costs, and
little or no cash for the homeowner.
Sometimes, unsuspecting homeowners are often offered
what appears at first to be lower monthly payments. However, these
payments do not include escrows for taxes and homeowners’ insurance,
which the current payment does include. In addition, there may be
significant prepayment penalties, which are not disclosed. All of these
add-ons can decrease the homeowner’s equity and increase their debt
Telemarketers are infamous for trying to convince older
homeowners that they need to refinance. These telemarketers purchase
lists of homeowners in the area who have recently refinanced their homes
or have liens or second and third mortgages on their homes. Such
homeowners may be particularly vulnerable to promises of loans that
sound too good to be true.
To guard against predatory lending, the homeowner is
(1) Always have an
attorney, financial planner, or trusted advisor review any documents
associated with refinancing;
(2) Make sure that you
are on the Missouri No Call list by phone (866-NOCALL1) or
(3) Do not give
financial power of attorney to anyone without your attorney’s advice;
(4) Do not sign any
contract with financing provisions without having an attorney review it;
(5) Make sure that
your total monthly payments do not exceed your disposable income. A good
rule of thumb is that your housing expense should not exceed
approximately one-third of your total income.
If you suspect that you have been a victim of predatory
lending, contact an attorney. There may be some matters he/she can help
you with to save your home, including filing complaints under the Elder
Abuse Act with the appropriate agencies.
By David S.
Purcell, J.D., an attorney with the Law Firm of Purcell & Amen, LLC.
He concentrates in estate planning and elder law. The
firm’s website has additional information on estate
planning, elder law, Medicaid planning and taxation.
RENDERING IS INTENDED AS A SERVICE TO PROVIDE GENERAL INFORMATION TO
THE PUBLIC AND TO PROVIDE SUGGESTIONS ABOUT APPROPRIATE APPROACHES
TO ACHIEVE DIFFERENT ESTATE PLANNING GOALS. IT IS NOT INTENDED TO
REPLACE OR SUBSTITUTE FOR THE ADVICE OF A QUALIFIED ESTATE PLANNING
ATTORNEY FAMILIAR WITH THE SPECIFIC SITUATION AND OBJECTIVES OF THE
READER AND RETAINED TO ADVISE ABOUT ESTATE PLANNING AND
ADMINISTRATION OF A PARTICULAR ESTATE. THE AUTHOR SHALL NOT HAVE ANY
LIABILITY OR RESPONSIBILITY WHATSOEVER FOR ANY LOSS OR DAMAGE
ALLEGED AS A RESULT OF RELIANCE ON THE INFORMATION CONTAINED IN THIS
primarily outlines the options and tools for transferring property
to heirs and beneficiaries after death and outlines advantages and
pitfalls of each. It covers what will happen if you fail to plan and
includes a discussion of probate for decedent's estates. Covered in
a different section are the various ways that property of an
incapacitated or disabled person can be managed during his or her
lifetime. Options for arranging transfer of assets after death can
be summed up into five categories:
making a will;
doing a living
a non-probate transfer; and
else a joint owner with right of survivorship.
practical matter, a person may die having used any or all of these
methods for various assets.
(1) Doing Nothing
The option of
doing nothing is selected by many people, either through ignorance,
procrastination, or design. The result is that, at death, the
person's assets will pass to their next of kin as defined in the
statutes in effect in the state of residence. These statutes, which
lawyers call the rules of intestate succession or the rules of
descent and distribution, originated in the English Common Law. They
provide a complex formula for dividing first among surviving
spouse and children, if any, and if none survive then to other
relatives based upon degree of relatedness by blood or
adoption. Except in the case of a surviving spouse and children,
assets are never divided among people who do not bear the same
relationship to the decedent so that, for instance, if a single
childless person is survived by a mother and three siblings, the
mother would inherit the entire estate. Missouri's rules of
intestate succession are set out at Section 474.010 of the Missouri
Revised Statutes and amplifying sections which follow. Ironically,
this legislative scheme, while sensible and comprehensive, is
rarely, if ever, as good as an individual plan could be when worked
out with the assistance of an experienced estate planning attorney.
(2) Intro to Wills
A last will and testament is used to designate a
guardian for minor children, to name someone as personal
representative (once called the executor) to administer your estate
after you die, and to designate who is to inherit from you after
your death. A will does not go into effect until death and is
therefore of no value in providing for management of your affairs
before you die. A will is generally effective to transfer only
assets for which no other plan of inheritance (such as joint
ownership) is in place. Moreover, a will does not avoid probate.
Some Basic Facts About Wills
A carefully drafted will allows one to control the disposition
of one’s property after death. A probate estate is all property that
passes pursuant to the provisions of a will and consists of all
property and cash assets owned at the time of death, including bank
accounts, land, furniture, buildings, cars, stocks and bonds,
proceeds of life insurance, pension plans, and retirement accounts
payable to the estate. Property that is titled with a joint tenant
or has nonprobate transfer designation is not part of the probate
estate. Also, any property that has a beneficiary designation (other
than to the estate) is not part of the probate estate. This type of
property often would include insurance policies, annuities and
A will can help assure that one’s property transfers to a
spouse, children or relatives. In addition, provisions of a will can
ease the estate tax burdens that may accompany the transfer of an
estate to the individuals chosen. A will provides the probate court
with guidance regarding the distribution of the decedent’s property
and the payment of debts.
In Missouri, a valid will must comply with these requirements:
The maker (called the testator if a man, or testatrix if
a woman) must be at least 18 years of age, except for a minor
emancipated by adjudication, marriage, or entry into active
The maker must be of "sound mind" at the time the will is
The will must be in writing and signed by the maker; and
The will must be witnessed by at least two people who do
not receive any property under the will. The witnesses must sign
their names at the end of the will in the presence of the
A notary is not required to create a valid will. However, a
notary is needed to create a self-proving will. A
“self-proving will” is one in which the two witnesses have sworn
that they have signed the will in compliance with the requirements
for a valid will. This eliminates the need for the witnesses to
personally appear in court before the Probate Division to prove
their signatures. A self-proving will is advisable because witnesses
may predecease the maker of the will or be difficult to locate.
A will names a personal representative (formerly called the
executor) to administer the probate estate, usually one or more
persons who have attained the age of 18 or older, or an institution
such as a bank or a trust company. A personal representative need
not be a resident of Missouri; however, it is often prudent to
choose a representative who lives close enough to oversee your
The administration of the probate estate involves paying
outstanding debts and taxes from the estate, as well as distributing
the estate according to the provisions of the will or by intestate
succession. The personal representative is responsible for proper
management of the estate, but is not personally liable for the debts
and taxes of the deceased individual. If the personal
representative is unable to carry out his or her duties, the court
will appoint someone else to fulfill the personal representative's
task. However, the situation is avoidable if the maker of the will
names a successor personal representative in the will to replace the
Restrictions on Distributing Property by Will
Missouri law gives a person broad freedom to distribute the
estate as desired. However, a surviving spouse can choose to either
receive by the will or ask the Probate Division by petition for
one-third of the estate if there are children or one-half of the
estate if there are no children.
Types of Probate
There are various procedures available to distribute an
estate. The choice of procedures depends primarily upon the value of
the estate. Although complexity varies, virtually all probate
proceedings require use of an attorney.
When a will is involved, the court first calls in the
witnesses to the will, who testify to the validity of the will. (If
the will is self-proving, which means that the witnesses signatures
are notarized, this step is eliminated.) After that is done, or if
there is no will, the court moves directly to the next step, which
is called administration.
When the value of the probate estate is less than the
exemptions allowed to the surviving spouse and minor children (which
includes a maximum $7,500 homestead allowance and a reasonable
living expenses maintenance allowance for one year), the court may
allow immediate distribution if the spouse requests a refusal of
letters. This also is allowed when there is no surviving spouse,
the estate is less than $5,000, and a creditor has a claim against
the estate. A friend or relative may be able to use this procedure
to be repaid for funeral bills.
If the value of the entire probate estate, including real
property, is worth less than $40,000, then the estate is considered
a small estate, and the court will allow distribution without
lengthy proceedings after a simple document is filed.
If an estate cannot be administered by a refusal of letters,
or as a small estate, it must go through a full administration. The
court supervises this administration unless either the deceased in
the will specifically authorized an independent administration
or all the heirs agree to independent administration. Independent
administration means that the personal representative may distribute
the entire estate with the help of an attorney without having a
court order. The personal representative is required to only make a
final report to the court.
An estate, whether administered independently or supervised,
must remain open for at least six months to allow creditors to file
claims and to give individuals the opportunity to challenge the
Both full administration and independent administration of an
estate normally take at least nine months to complete, but can take
longer if more complicated property is involved or claims are filed
against the estate.
Missouri law prescribes a minimum compensation for the
personal representative's services. It must be remembered that this
fee schedule applies only to estates with more than $40,000 of
property in the estate. This compensation, paid out of the estate,
is a percentage of the value of the estate.
On the first $5,000 – 5 percent
On the next $20,000 – 4 percent
On the next $75,000 – 3 percent
On the next $300,000 – 2¾ percent
On the next $600,000 – 2½ percent
On all over $1,000,000 – 2 percent
representative may waive this compensation. Because the personal
representative’s fees are taxable, many personal representatives
waive the fee if they are beneficiaries of the will or trust.
The attorney who performs services for the estate is also
entitled to at least the compensation listed above. The court can
allow additional compensation if such is reasonable. A family can
also negotiate a fee with the lawyer that is different from above.
(3) Living Trusts Avoid Probate
The generally preferred method by which one can avoid probate
while retaining control and use of the property during one’s
lifetime is thru the creation of a living trust. Living trusts are
revocable, which allows one to change the trust's provisions or to
revoke the trust. A living trust is created by a trustor (grantor or
settlor) and the assets of the trust are managed by a trustee for
the benefit of the beneficiary. A trustor may serve as both the
trustee and beneficiary of the trust during his or her lifetime, and
he or she should choose the successor trustees and beneficiaries. A
married couple may also create a joint trust that often makes trust
administration easier, and of course a trust can have multiple
trustees and beneficiaries. A living trust must be in writing and in
today’s complex society should be prepared by an experienced estate
planning attorney. Financial institutions often do not accept trusts
without a notary’s signature.
One of the principal advantages of a living trust is that it
avoids probate. The probate procedure can interrupt control of
assets and the flow of income to one’s spouse or other family
members. In addition, the costs and fees of administration, such as
court costs, attorney fees and personal representative fees, reduce
the net value of the devise or bequest to the individual heirs.
Another advantage of a living trust is that a living trust can help
with the property management during an individual’s lifetime in the
event one should become incapacitated. Finally, a properly drafted
living trust can also help reduce estate taxes, particularly for
To be effective, a living trust must be funded. Funding is
simply the process of changing title of assets to the living trust.
The living trust only affects assets to which title has been
transferred to the trust. Assets can also be transferred to the
trust upon the death of the trust maker by the use of a “pour-over”
will. Assets that are put into a trust by the use of a “pour-over”
will have to go through probate because the title still has to be
changed by the court into the name of the trust. The reason a “pour
over” will is used is to make sure that the assets are dealt with as
the trust maker desires.
The trust document sets out the powers and duties of the
trustee and not only designates the beneficiaries but how and when
they are to receive their benefits. All kinds of future problems can
be anticipated with alternative instructions. A living trust
generally becomes irrevocable once the trustor dies or becomes
All trusts in Missouri are governed by the Missouri Uniform
Trust Code (MUTC). This code provides a series of default provisions
in case the trust is silent on a particular issue. Many of the
provisions of the MUTC can be overridden by the trust maker. The
MUTC sets forth the trustee powers and duties that are not
specifically provided for in the trust.
transfers are of three basic types: (1) beneficiary designation on
certain financial arrangements such as IRAs, life insurance and
annuities; (2) pay on death [POD] on assets denominated in dollars,
such as bank accounts and promissory notes; and (3) transfer on
death [TOD] for assets not denominated in dollars, such as titles to
real estate, motor vehicles, and corporate stocks or brokerage
accounts. All are revocable so long as the transferor is competent,
does not pass any interest to the beneficiary during
the transferor's lifetime, and assuming that the beneficiary
survives the transferor and is legally competent, they avoid probate
when the transferor dies. A non-probate transfer can designate one
or more alternative beneficiaries in the event of death of the
primary beneficiary or other contingency. A trust can be a
beneficiary of a non-probate transfer. People who rely on
non-probate transfers often encounter problems they did not
anticipate – for instance, the transferor becomes incapacitated and
there is no mechanism set up to manage the property before the
transferor dies; or the value of the asset shrinks or grows in
relationship to the transferor's other assets, distorting the
balance among all the various beneficiaries of the estate. If the
beneficiary predeceases the grantor or is incapacitated or is on
government benefits such as SSI or Medicaid or is in legal
proceedings such as a divorce, bankruptcy, or creditor problems when
the transferor dies, the non-probate transferor plan may
transfer of real estate is accomplished by a beneficiary deed.
Wills and Life
Life insurance policies do not take the place of a will. If
the policy benefits are payable to the estate after death, the
proceeds will be probated and distributed according to the will. If
the policy benefits are payable to a beneficiary other than the
estate, such as a spouse or other relative, the will has no effect
on the distribution and the named beneficiary will receive the
An estate tax is a tax imposed by the federal and Missouri
governments. The gross estate for estate tax purposes is all
property owned at death, certain property transferred during one’s
lifetime in which an interest was retained, and property transferred
in contemplation of death. Included in the gross estate is joint
property, life insurance and retirement benefits. The tax is then
imposed on the taxable estate after deductions and exemptions. The
federal estate tax liability is reduced by estate tax paid to the
State of Missouri.
Most estates are not taxed because they do not exceed the
exemption amount. A table of exemptions, based upon current law,
follows; however, those exemptions are likely to change with new
Date of Death Exemption Amount
2011 and thereafter $1 million
to Do When Someone Dies
The death of an individual may create a wide variety of legal
and financial issues. Regardless of whether there is a will or
assets to be probated, it is wise for family members or others most
close to the decedent to contact an attorney familiar with handling
estates. If there is a will, Missouri law requires that it be
promptly filed with the probate court, even if it appears that there
are no assets to be probated, and even if the validity of the
document is questioned or disputed.
decedent's expenses of last illness and funeral, as well as tax
liability and other debts, must be resolved. Sometimes it is
necessary to pay those out of jointly held or non-probate transfer
assets. Delays in addressing these issues may only add to the
difficulty and expense of settling the estate. All this must be done
before any heirs or beneficiaries can rest assured of their rights
to the decedent's property.
If an individual dies leaving property that is not transferred
by other means (joint ownership with right of survivorship, trust,
etc.), it must go through probate court proceedings. When there is a
valid will, the personal representative named should be contacted
(if he or she is not already aware of the individual's death). The
personal representative should contact a lawyer (who is familiar
with estate and probate law).
Changing Your Will or Living Trust
A will or living trust that meets all of the specifications
described earlier is valid until changed or revoked.
A will or living trust validly executed in another state where
one then resided is also valid in Missouri. However, when changing
states of residence, one should consult with a local attorney to
have the will or living trust reviewed. If one changes one’s mind
about something in her will or trust, or if circumstances force a
modification, one can execute a codicil (a document stating
alterations or changes to the original will) or a trust amendment to
change a living trust. The codicil or trust amendment must be
executed and witnessed, just as with the original will or living
trust. While a codicil or trust amendment is a convenient method for
making minor changes to a will or living trust, modifications may
require a redrafting of the original document and should always be
done by an attorney.
A person should never write on a will or living trust after it
is executed. Such writing is not effective and may invalidate the
entire document. Always consult an attorney concerning how to change
a will or living trust.
(5) Joint Ownership As a Will Replacement
Joint property – property owned by two or more persons with a
right of survivorship – is not distributed by will when one owner
dies. Property jointly owned bypasses probate and automatically
passes to the surviving joint owner(s). Joint tenancy between
husband and wife in Missouri is called "tenancy by the entireties."
Joint ownership may simplify distribution of a deceased
individual’s property after death. However, in many circumstances
joint tenancy can cause difficulty if the property was intended to
be shared among heirs or if there is a disagreement between the
remaining joint tenants. Also, joint tenancy can complicate affairs
while one is still living. An individual’s control over jointly-held
property is limited because the property is also owned by, and thus
subject to the control of, a joint owner(s). Depending on the
situation, creditors of the joint owner may also seize the property.
In some circumstances, it may also make qualifying for government
benefits more difficult. And if a joint owner becomes mentally
incompetent, the property can be subject to probate guardianship and
With the various methods of avoiding probate, estate planning
attorneys rarely recommend joint ownership of property as a method
of avoiding probate.
Many senior citizens attempt to sell or give away their
property either to avoid probate or in the hope to make it easier on
family members when they are gone. Any individual planning a
property transfer or a change in title (for example, adding a name
to a deed) should consider the following points before acting.
If a property owner deeds his or her house to someone
without keeping his or her name on the deed, the new person on
the deed can force the original owner to move out of the house
and can sell the house whether the original homeowner wants them
to or not.
If a property owner wants to add a person to the deed as
a joint tenant (a person with an equal property share and a
right of survivorship), the deed must say "as joint tenants with
right of survivorship."
If a property owner adds another to the deed as a joint
tenant, a property owner cannot sell the property later without
the joint owner's consent. Also, upon death, the property will
automatically belong to the other person if that person has
If a property owner wants to sell his or her property,
the deed must reflect the name of the present owner. If the
property has someone else's name on it (such as that of a
deceased family member), the name of the deceased family member
must be removed from the title. Contact an attorney to find out
what must be done.
In Missouri, a married person cannot deed away his or her
interest in real estate without the spouse’s signature as well.
Lifetime transfers may have adverse effects on capital
There are many alternatives to adding someone’s name to a
deed. Other options would include a beneficiary deed or the use of a
If illness or disability confines an individual to home or a
hospital, they may find it hard to take care of personal business.
One solution to this problem is to create a power of attorney.
A power of attorney is created when one person (the "principal")
gives someone else (the "attorney in fact") written authority to act
in the principal's name. Normally, the attorney in fact is not a
lawyer, but rather a friend or relative. Because the power of
attorney may be used to the principal’s disadvantage, the principal
must be very careful in choosing an attorney in fact.
A power of attorney is created by a written document stating
the names of both the principal and the attorney in fact, along with
the specific powers given to the attorney in fact.
Example: Mr. A broke his hip and therefore cannot visit his
bank for several months. His Social Security check is directly
deposited in his bank account, and he needs cash for his groceries.
Mr. A can give a neighbor or relative a power of attorney to make
cash withdrawals from his bank account. Because Mr. A can manage the
rest of his personal business himself, he does not have to give his
attorney in fact any additional powers. However, he may give them
the additional powers if he has decided that it is in his best
interest to do so.
Durable Power of Attorney
One problem with the power of attorney is that the principal
may give away only the powers he or she actually possesses. If the
principal later becomes incompetent to conduct his or her affairs,
the attorney in fact likewise becomes unable to act. The power of
attorney thus ends with either the incompetence or death of the
principal. A Missouri law, the Durable Power of Attorney
Act, provides a solution to this problem. A power of attorney
will continue after you become incompetent if:
(1) The power of attorney is entitled a "Durable Power of
(2) The document states that the power is "durable" and
includes a provision specifying that the power of attorney will not
terminate in case of disability or incapacity; and
(3) The document is signed by the principal, dated and
notarized. The Durable Power of Attorney need not be filed with the
local Recorder of Deeds to be valid unless real estate transactions
are involved. A Durable Power of Attorney may have “springing
powers.” This means that the powers conferred to the attorney in
fact are only effective when the principal becomes incompetent and
is unable to conduct his or her affairs. This type of Durable Power
of Attorney will require that one or two physicians certify that the
principal is incompetent.
The power of attorney may be cancelled or modified in one of
several ways. One can stipulate a date for the power of attorney to
expire in the initial agreement. Changes can also be made simply by
notifying the attorney in fact by oral or written communication.
However, whenever possible, oral communication should be avoided in
favor of written notification. The power of attorney may also be
modified or terminated by filing a written notice in the office of
the Recorder of Deeds in the city or county of the principal's
Note: The Recorder of Deeds does charge for
recording or revoking the power of attorney.
A Durable Power of Attorney will be revoked automatically if
the attorney in fact is no longer qualified to act. If the attorney
in fact is a spouse and a divorce occurs, the power of attorney
automatically ends. The Durable Power of Attorney will also
automatically terminate at the time of death. One may provide for a
successor or contingent attorney in fact, or you may establish a
procedure to select a successor in the event that the attorney in
fact is unwilling or unable to act. An attorney in fact with general
powers also has all the rights, powers or purposes that are
conferred in the Durable Power of Attorney. Missouri law requires
that a Durable Power of Attorney specifically grant authority for
the attorney in fact to have the power to carry out any of the
To execute, amend, or revoke any trust agreement;
To fund with principal’s assets any trust not created by
To make or revoke a gift of the principal’s property in
trust or otherwise;
To disclaim a gift or devise of property to or for the benefit
of the principal; and
To create or change (in some circumstances) survivorship
interests in the principal’s property or in property which the
principal may have an interest;
To designate or change the designation of beneficiaries to
receive any property, benefit or contract right on the
To give or withhold consent to an autopsy or postmortem
To make a gift of, or decline to make a gift of, the principal’s
body parts under the Uniform Anatomical Gift Act;
To nominate a guardian or conservator for the principal, and if
so stated in the power of attorney, the attorney in fact may
nominate himself as such;
To give consent to or prohibit any type of health care, medical
care, treatment or procedure;
(To designate one or more substitute or successor or additional
attorneys in fact.
Missouri law prohibits the attorney in fact from making or
revoking a will for the principal or from making or revoking a
living will (Health Care Directive) for the principal.
Another method of allowing another person to conduct business
for you is to appoint them as personal custodian under the
Missouri Personal Custodian Law. Under this law, you can transfer
some or all of your property, both personal property and real
estate, to another person to hold for you as custodian of the
property. Title to the property remains with you. The custodian
holds, manages and invests the property for your benefit and in the
way you direct. The custodian is a property manager only.
To transfer the property to the custodian, you must execute a
written document describing which property is being transferred and,
if the property is real estate, you need to execute a deed
transferring the property to the custodian. The written documents
should always state that the person receiving the property is a
personal custodian acting for you under the Missouri Personal
Similar to a Durable Power of Attorney, a personal
custodianship may be effective even after you become incompetent.
The custodian administers the property for your benefit as you
directed before you became incompetent or as the custodian deems
advisable if you did not so direct.
You may revoke the personal custodianship during your lifetime
unless you are not competent or have stated in writing that the
custodianship is irrevocable. The custodian must transfer the
property back to you if you revoke the custodianship and are
competent to receive the property.
The personal custodianship may be a beneficial tool for you in
managing your affairs. It provides an alternative method for older
persons to avoid the necessity of a conservatorship as well as
transferring property into joint tenancy or outright to another
person. Discuss your situation thoroughly with an attorney before
you decide to institute a personal custodianship.
A guardian is a person appointed by the court to have
care and custody of a person (the "ward") who is unable to care for
him or herself. A conservator is a person appointed by the
court to manage the financial resources of a person (the "protectee")
who is unable to manage his or her own financial resources.
Guardianships and conservatorships may have far-reaching
implications for all persons involved. Before an individual begins
guardianship or conservatorship proceedings, they should be certain
that such steps are absolutely necessary. Consider whether the
proposed ward or protectee is able to make decisions concerning his
or her personal or business affairs.
Because guardianships and conservatorships have such serious
consequences, the law provides special protection for the person
over whom a guardianship or conservatorship is sought. If you are
that person, you must receive notice of the impending proceedings.
If you object to the proceedings, you have the right to challenge
the guardianship or conservatorship in court. You have the right to
a court‑appointed lawyer (if you cannot afford a private lawyer) and
to a hearing. This hearing will determine whether a guardianship or
conservatorship is necessary. You may bring your personal doctor or
other witnesses to testify on your behalf. In addition, your
attorney can question the witnesses appearing against you. The
court-appointed lawyer will make a report to the court regarding the
condition of the potential ward.
If the court finds that you need a guardian, the court will
appoint someone to so act. The guardian must provide for the ward's
basic needs: food, shelter and medical care. The guardian must not
impose excessive restraints upon the ward's freedom, limiting only
those acts necessary to ensure safety. Each year the guardian must
prepare a report for the court on the personal status of the ward.
If the court finds that you need a conservator, the court will
also appoint someone to so act. The conservator may or may not be
the same person who is appointed as your guardian. The conservator
must skillfully and prudently manage the protectee's financial
resources. The conservator may pay bills, receive public benefits,
sell and buy real estate and personal possessions, and otherwise
control the protectee's assets. The conservator must file with the
court an annual report describing all transactions made in the
protectee's name. In addition, the conservator must deposit with the
court an amount of money, called a bond, to ensure honest and
prudent management of the protectee's estate. This bond is purchased
from an insurance company with money from the protectee’s estate.
Sometimes a person suffers from only a mild disability or
partial incapacity. In such a circumstance, the court may appoint a
"limited" guardian or conservator. This appointment can preserve
many of the person's legal rights. A person retains power over those
affairs he or she is capable of managing. The guardian or
conservator manages the rest. The use of a living trust and durable
powers of attorney can help avoid this procedure.
The procedure for appointing a guardian or conservator is as
A petition must be filed with the probate court.
The person for whom a guardian or conservator is sought must
receive notice of the filing and be informed of his or her
rights to have an attorney and a hearing. The court will appoint
a lawyer to represent the potential protectee. If only a
conservatorship is sought and the person agrees to appointment
of a conservator, the court may make such appointment without
further notice or hearing.
In all other cases, the probate court will hold a hearing on
whether a guardian or conservator is required. Before the court
will appoint a guardian or conservator, a finding must be made
that the person is incapacitated or disabled. Evidence usually
involves testimony by a doctor, either in person or in writing.
The attorney representing the person may contest this evidence
and offer alternative medical evidence.
If incapacity or disability is proven, the court will appoint a
guardian, conservator, or both. If the ward or protectee is able
to communicate his or her choice for the individual to serve as
guardian or conservator, the court will give strong
consideration to that choice. If no such choice is communicated,
the court may review an individual’s estate planning documents
to see if the potential ward has indicated a choice of guardians
or conservator. You may specify in your will or other advance
directive the individual that you want to be your guardian or
conservator. Employees of nursing homes, the Department of
Mental Health, and the Department of Social Services may not
serve as guardians or conservators unless they are related to
the ward or protectee.
If you wish to become a guardian or conservator, remember that
you may need to post a bond. You will also need an attorney. Once
appointed, you assume responsibility for the ward and may use the
ward's assets only for maintenance and valid expenses. You must keep
accurate records for use in making your annual reports to the court.
A guardianship or conservatorship can be terminated in several
ways. A guardianship ends with the death of the ward. If the
protectee's property is exhausted, the court may order the
conservatorship ended. Also, a ward can request that the court
review his or her capacity. A new hearing will be held and
additional evidence will be considered. If the court finds that the
ward or protectee has regained capacity or ability, the guardianship
or conservatorship will be modified or ended.
If there is no one to act as a guardian or conservator for a
person who needs help, contact the Office of the Public
Administrator for the county in which the person lives. They may be
able to institute the proper proceedings and act as guardian and/or
AND ADULT ABUSE
By David S.
Purcell, J.D., an attorney with the law firm of Purcell & Amen,
L.L.C., where he concentrates in estate planning and taxation. The
firm’s website has additional information
on estate planning, elder law, Medicaid planning and taxation.
The term “protective services” may be used in several ways. In
its broadest sense, it describes a network of public and private
social services agencies available to assist individuals with their
personal or financial affairs. Typically, these agencies aid
mentally or physically frail persons who live alone and have become
unable to care for themselves. For persons unable to make necessary
decisions, long-term assistance may come through the appointment of
a guardian. (See Guardianship section.)
Missouri has two protective services laws. The Adult Abuse
Law protects adults of all ages, including senior citizens, from
physical harm from a present or former household member. The
Elderly Abuse Law specifically protects senior citizens against
financial and physical abuse, as well as general neglect.
The Elderly Abuse Law directs the Missouri Department of
Health and Senior Services to establish an intervention program to
respond to reports of alleged elder abuse, neglect and exploitation,
and to work with older and handicapped adults in resolving the
situations. The program is based on an individual's right to
self-determination; no decisions are made about a competent adult
without his or her involvement and consent. Every effort is made to
keep an individual in his or her own home.
Missouri's law provides that people – who in good faith report
suspected abuse or cooperate with an investigation – will be immune
from criminal or civil liability. It further provides that the
identity of the reporter shall not be disclosed except with the
permission of the reporter or by order of a court. Anonymous reports
are also accepted.
To report suspected abuse in Missouri, please
call 1-800-392-0210 or 1-800-392-8819 (TDD).
Callers should be prepared to give the alleged victim's name and
address, an account of what has occurred, where and when it
happened, and who the suspected abuser might be.
Note: Abuse is defined as the infliction of
physical, sexual or emotional injury or harm, including financial
exploitation by any person, firm or corporation.
After the Department of Health and Senior Services receives a
report, it conducts an investigation to determine whether the
elderly person is facing a likelihood of serious physical harm and
is in need of protective services. If protective services are
necessary, the department will review and evaluate the needs of the
person. With the consent of the elderly person, the department can
provide casework, counseling and, if necessary, assistance in
locating alternative living arrangements.
If the person in need of protective services is unable to
consent to these services, then the director of the Department of
Social Services can initiate court proceedings to obtain a guardian
for the person. (See Guardianship section.)
Adult Abuse Law
In contrast to the Elderly Abuse Law, the Missouri Adult Abuse
Law applies to anyone 18 years of age or older who is in danger of
suffering physical injury from a present or former household member.
The abused adult may file a complaint (called the "petition")
in court, and, if good cause is shown, immediately can obtain an
ex parte order of protection that day. This order can
prevent the abusive person from entering the complainant's home and
generally can restrain the person from abusing, threatening,
molesting, or disturbing the complainant. This ex parte order
is served on the abuser by a sheriff and lasts for 15 days. There is
also a procedure for filing for an order of protection during
non-business hours – check with your local court.
Within 15 days after the filing of the petition, a hearing is
held and the complainant must prove the accusations stated in the
petition. The respondent (the accused abuser) receives notice of the
hearing. If such proof is shown, the judge can issue or continue a
protective order for up to 180 days. The protective order may be
renewed, after a hearing, for a second 180-day period. The abusive
party must comply with the order or face arrest.
If you desire protection under the Missouri Adult Abuse Law,
contact your county circuit court clerk. If the petitioner does not
have counsel, the clerks of the court are required to provide
guidance in filing the petition. You may also want to contact an
attorney to assist you.
Offenses Against A Person
Elder abuse is a crime in Missouri, and an individual may be
charged in connection with an act or acts that cause harm to a
person 60 years of age or older.
The provisions of the Elderly Abuse Law describe elder abuse
in the first, second and third degrees. While first and second
degree abuse involve physical harm, third degree elder abuse can
involve “grave emotional distress” as well as threats and
Missouri law states that any person who knowingly abuses or
neglects a resident of a long-term care facility shall be guilty of
a class “D” felony.
STATUTORY LIVING WILL
(HEALTH CARE DIRECTIVE)
By David S.
Purcell, J.D., an attorney with the law firm of Purcell & Amen,
L.L.C., where he concentrates in estate planning and taxation. The
firm’s website has additional
information on estate planning, elder law, Medicaid planning and
Missouri's Living Will Law allows a person (the declarant) to
direct his or her doctor and medical facility to withhold or
withdraw medical procedures that merely prolong the dying process.
The living will must be in writing, dated, and signed
by the declarant or by a person other than the declarant at the
declarant's express direction. If the living will is not in the
declarant's handwriting, two persons must witness it. The witnesses
must by at least 18 years of age. Anyone making a living will should
always keep the original and give copies to his/her doctor, hospital
(for inclusion in medical files) and family members. If the living
will is intended to include denial or withdrawal of artificial
(intravenous or tube) nutrition and hydration, or breathing, the
intention must be specifically stated. Similar desires can also be
expressed in a health care directive. The Missouri Bar has created a
Durable Power of Attorney for Health Care Directive in a document
available from them upon request.
The living will or health care directive can be revoked in
any manner by which the declarant can show he or she wants to
When Does The
Living Will Become Effective?
The living will or health care directive becomes effective
only when the declarant, suffering from a terminal condition, is no
longer able to make and communicate treatment decisions. It is
important to remember that so long as the declarant is able to make
and communicate treatment decisions, those decisions control, and
the living will is not effective.
What The Living Will
Does and Does Not Do
The living will or health care directive directs the doctor
and hospital not to perform any medical procedures that merely keep
the declarant alive. The living will also prevents any health care
professional or medical care facility that acts pursuant to a living
will from being subject to civil or criminal liability. The living
will does not authorize mercy killing or any affirmative act to
shorten life. It also does not prevent administration of medication
or any medical procedure necessary to provide comfort or to reduce
Your Physician and Hospital
Some doctors and health care facilities do not recognize the
living will as a means for a patient to control his/her own medical
treatment. These doctors and facilities are required to take all
reasonable steps to transfer the patient to a doctor and facility
that will honor the living will. To prevent any complications in
honoring your living will, it is very important that you discuss
your wishes with your doctor before you sign one.
DURABLE POWER OF
ATTORNEY FOR HEALTH CARE
By David S.
Purcell, J.D., an attorney with the law firm of Purcell & Amen,
L.L.C., where he concentrates in estate planning and taxation. The
firm’s website has additional
information on estate planning, elder law, Medicaid planning and
Missouri has enacted legislation providing citizens with a
statutory right to designate another person to make health care
decisions for them if they become incapacitated. The law allows what
is known as a "durable power of attorney for health care." The
person who executes such a document is called the "principal." The
person who is designated to act is called an "attorney in fact."
The attorney in fact may be any adult you trust to make important
decisions for you, other than an attending physician or the owner,
operator or employee of a health care facility where the person is a
The durable power of attorney for health care must be in
writing, signed by the principal and notarized. It comes into effect
only upon a certification of incapacity by two licensed physicians,
unless the document provides for a different number. In any event,
certification by at least one physician is required.
A competent patient may revoke the durable power of attorney
for health care at any time and in any manner by which the patient
can show that he or she wants to revoke it. The revocation is
effective upon it being communicated by the principal to the
attorney in fact or the attending doctor.
No doctor or treatment facility can require a patient to
execute a durable power of attorney for health care as a condition
of treatment. Also, no insurance company can require an insured to
execute a power of attorney for health care as a condition for
receiving benefits. Any third party acting in good faith may rely on
the instructions of and dealings with an attorney in fact pursuant
to the authority granted in a power of attorney for health care
What the Durable Power of Attorney for Health Care Does and Does Not
Under the durable power of attorney for health care, your
attorney in fact may make every possible decision regarding health
care. This includes decisions to enter a hospital, to undergo an
operation, and even to terminate life-support systems. If you want
to enable your attorney in fact to authorize the withdrawing or
withholding of food and water, however, the document must provide a
specific grant of authority to do so.
How Does a Durable
Power of Attorney For Health Care Differ From a Living Will?
A living will is merely a statement saying that the person
signing the document does not want any extraordinary procedures that
simply keep the declarant alive. A living will does not authorize
anyone else to make health care decisions for you, whereas a durable
power of attorney does.
Do I Need Both a Living Will and a Durable Power of Attorney for
If you decide that you want someone to speak for you
concerning all of your future health care, including the removal of
life-support systems, you will need to complete a durable power of
attorney for health care. A living will merely helps make clear that
you do not want certain life-prolonging medical procedures or
treatments under specific conditions. A living will provides doctors
and others with evidence concerning your wishes. It may also serve
as a guide to your attorney in fact. The prudent course of action
would be to have both a living will and a durable power of attorney
for health care.
The Missouri Bar has created a health care directive and
durable power of attorney for health care form that is valid in
Missouri. Single copies of the form are available at no charge by
sending a written request to:
Health Care Proxy Form
The Missouri Bar
P.O. Box 119
Jefferson City, MO 65102-0119
or call The Missouri Bar at 573-635-4128. You can also find a
copy of this document
on The Missouri Bar
By David S.
Purcell, J.D., an attorney with the law firm of Purcell & Amen,
L.L.C., where he concentrates in estate planning and taxation.
The firm’s website has
additional information on estate planning, elder law, Medicaid
planning and taxation.
An important federal disclosure law went into effect on
December 1, 1991. The law, known as the Patient Self-Determination
Act (the act), is an amendment to the Medicare and Medicaid
provisions of the Social Security Act.
Who the Act Affects
The act affects all Medicare and Medicaid provider
organizations. These organizations include hospitals, skilled
nursing facilities, home health agencies, hospices, and pre-paid
health care organizations. In general, the act requires these
organizations to provide written information to patients about their
rights under state law to make their own medical care decisions.
These rights include the patient's right to refuse medical treatment
and formulate advance directives.
Advance directives are written instructions authorized by the
patient concerning the patient's health care in the event the
patient is incapacitated. Living wills and durable powers of
attorney for health care are two forms of advance directives that
are legal in Missouri. Both living wills and durable powers of
attorney for health care are covered elsewhere in this chapter.
How the Act Applies to the Patient
To illustrate, if you are entering the hospital for surgery,
the act would affect you. Upon your admission to the hospital, a
hospital representative must provide you with written information
about your health care rights under state law. This information
should include information about living wills and health care powers
of attorney. If you have a living will and a health care power of
attorney, you should make them part of your hospital records at that
time if you have not done so previously. The hospital representative
should provide you with a written copy of the policy regarding your
health care rights. At that time, the hospital representative
documents in your medical record whether or not you have a living
will and/or health care power of attorney.
Finally, the act specifically states that your care cannot be
contingent upon whether or not you have an advance directive. The
act exists to inform you of your rights. Therefore, those
organizations affected by the act may not discriminate against you
because you do or do not have an advance directive.
Of course, the time to make health care decisions is not at the
time of admission to a hospital or other health care facility. You
should make these decisions while you are healthy and not under any
pressure. In addition, you should discuss your health care wishes
with close family members, your doctor, clergy, and close friends in
order to alleviate any future confusion or misunderstanding.
Veterans’ Benefits that Increase Income to Pay
for Long Term Care
Connected “Aid and Attendance”
By Mary R.
McCormick, J.D., LL.M., CELA. Ms. McCormick recently completed her
23rd year as a Navy Reserve lawyer. In her civilian capacity, she
assists older adults and their caregivers throughout western Missouri,
with an emphasis on obtaining the highest quality long term care.
law firm located in the Kansas City area focuses on estate planning,
Medicaid and veterans’ benefits, and all probate matters, including
guardianships and conservatorships.
This information on veterans’ benefits is designed to give a brief
description of the Aid and Attendance program. The information is
current as of November, 2010, but is subject to change at any time.
For more detailed information, or for information about Missouri’s
nursing homes for veterans and other benefits, you may wish to visit
the Missouri Veterans Commission website.
know of benefits available from the Veterans Administration’s
medical system, but few veterans are aware of the VA’s special
pension programs designed to assist wartime veterans, and their
surviving spouses, with funds to help offset the cost of long term
care. The most generous of these programs is “Aid and Attendance.”
This article provides a brief overview of the eligibility criteria
for this important, but underutilized, program.
Spouse, or Disabled Adult Child (Any May be a Claimant)
have served at least 90 consecutive days on active duty, one day
of which was during a war-time period
have a discharge that was other than dishonorable
physician must declare him/her as housebound or in need of
assistance from another individual, which may include services
offered by home health care, assisted living, or nursing home
have less than $75,000 in assets, excluding home, car, and
income requirements (and family income is reduced by amount of
family medical expenses)
must have been married to the veteran at the time of the
veteran’s death, or have had children by the veteran and never
remarried (minor or disabled children may qualify for benefits
on their own)
must have been living with the veteran at the time of the
veteran’s death, unless the separation was due to medical
reasons (there may be some exceptions related to separations due
If Under Age 65
prove disability if under the age of 65. The two ways to prove
permanent disability rated as 100 percent disabling under the VA
schedule, and confined to the dwelling; or,
A 100 percent
disability with another 60 percent disability, regardless of
whether or not the person is confined to the dwelling.
Veterans over the
age of 65 are presumed to meet the disability criteria.
Periods of Wartime
WWI: April 6, 1917 to November 11, 1918
WWII: December 7, 1941 to December
Korean War: June 27, 1950 to January 31, 1955
War: August 5, 1964 (February 28, 1961, for veterans
who served “in country” before August 5, 1964), through May 7, 1975
Gulf War: August 2, 1990, through a date
yet to be set
Aid and Attendance
Veteran $1,644 per
Married Veteran or
Dependent $1,949 per
Spouse $1,056 per
month $ 808
Once awarded Aid and Attendance, a veteran may obtain free
medications, medical equipment, incontinence supplies, glasses, and
hearing aides from the VA hospital/clinic via U.S. Mail without
going to the VA.
FOR SENIORS AND
PERSONS WITH DISABILITIES
By David P. Sykora,
Executive Director of the St. Louis Area Agency on Aging, and his
Editor’s Note: The
following is a partial listing of the many agencies and
organizations in Missouri that aid senior citizens. Most of the
individual agencies listed can better inform you of the spectrum of
services offered in Missouri.
AGENCIES ON AGING (AAA)
For information on programs available in your area
which benefit senior citizens and persons with disabilities, contact
the Area Agency on Aging (AAA) in your community or
go to the website. Additional
information is available at the Community Action Agency (CAA)
nearest you. Persons in St. Louis County may contact the St. Louis
County Office of Family and Community Services, County Older
Resident Program (CORP), 121 South Meramec, Clayton, MO 63105, (314)
615-4516, TTY (314) 615-4425.
Care Connection for
106 West Young St.
Warrensburg, MO 64093
Area Agency on Aging
1121 Business Loop
70 East, Suite 2A
Columbia, MO 65201
600 Broadway, Suite
Kansas City, MO 64105-9990
Agency on Aging
211 S. Polk
Albany, MO 64402
St. Louis Area
Agency on Aging
St. Louis, MO
Agency on Aging
Kingshighway, Suite 100
Agency on Aging
1735 South Fort
Agency on Aging
Manchester, MO 63011-3690
Agency on Aging
815 N. Osteopathy
Kirksville, MO 63501-4682
Region X Area Agency
531 E. 15th St.
Joplin, MO 64803
Missouri Community Action Agencies
Central Missouri Counties
Human Development Corporation
807B N. Providence
Columbia, MO 65203
Community Services, Inc. of Northwest Missouri
1212 South Main
P.O. Box 328
Maryville, MO 64468-2604
Delta Area Economic Opportunity Corporation
99 Skyview Drive
Portageville, MO 63873
Green Hills Community Action Agency
1506 Oklahoma Avenue
P.O. Box 278
Trenton, MO 64683
Human Development Corporation of Metro St. Louis
929 North Spring
St. Louis, MO 63108
East Missouri Action Agency
107 Industrial Drive, P.O. Box N
Park Hills, MO 63601
Missouri Ozarks Community Action, Inc.
Box 69, 306 S. Pine
Richland, MO 65556
Community Action Agency
1415 S. Odel
Marshall, MO 65340
Northeast Community Action Corp.
16 North Court
Bowling Green, MO 63334
Ozarks Area Community Action Corporation
215 South Barnes
Springfield, MO 65802
Economic Opportunity of Greater St. Joseph
Community Action and Partnership
St. Joseph, MO 64503
Economic Security Corp. of Southwest Area
302 South Joplin
Joplin, MO 64801
Ozark Action, Inc.
710 East Main St.
West Plains, MO 65775
Jefferson-Franklin Community Action Corp.
#2 Merchant Dr.
Hillsboro, MO 63050
Community Action Agency of St. Louis County, Inc.
2709 Woodson Road
St. Louis, MO 63114
South Central Missouri Community Action Agency
P.O. Box 6, Old Alton Road
Winona, MO 65588
Greater Community Services of Kansas City
6323 Manchester Avenue
Kansas City, MO 64133-4717
West Central Missouri Community Action Agency
106 West 4th St.
Appleton City, MO 64724
Social Services, Income and Family Maintenance
The Missouri Department of Health & Senior Services and
the Missouri Department of Social Service/ Division of Family
Services have offices located throughout the state to assist older
persons in maintaining an adequate standard of living. Consult your
telephone directory for the nearest office. Look under the major
heading of "Missouri-State of" and find either “Department of Health
& Senior Services” or "Division of Family Services."
The MO Department of Health and Senior Services (DHSS) – The basic services available through the DHSS offices
include placement, counseling, information and referral, and in-home
(homemaker) services. For information, write to the Department of
Health and Senior Services, P.O. Box 570, Jefferson City, Missouri
65102 or call (573) 751-6400 or (800) 835-5465.
The Department of Health
and Senior Services also coordinates a protective services
program for Missourians 60 years of age and older. To aid in
identifying elderly persons who are in need of protective services,
the Department of Health & Senior Services has a 24-hour toll-free
hotline. This hotline will speed investigations and assistance to
anyone needing immediate services. The hotline number is
DHSS also strives to maintain a high standard of living for
individuals residing in long-term care facilities in Missouri
through inspection, certification, and licensure.
The MO Department of Social Services / Division of Family
Services – Can help eligible individuals with income
maintenance, medical assistance, food stamps, and other financial
assistance. For the office in your area, consult the white or blue
government pages of the telephone directory under the major listing
"Government Offices-State of Missouri,” and find "Family Services”
or call (800) 735-2466.
– Call 1-800-633-4227 for questions concerning Medicare.
Social Security Administration
– Offices are located throughout the state. Consult the blue pages
of the telephone directory for the office nearest to you. Call
– Consult the blue pages of the telephone directory for the office
nearest you or call toll-free 1-800-827-1000.
Railroad Retirement Board
– Two Missouri offices provide assistance for railroad employees and
In Kansas City, call: (816) 426-5884 or (800) 808-0772
In St. Louis, call: (314) 539-6220
Rural Development –
This agency provides housing loans and a limited number of grants to
individuals or families in order to provide decent, safe, and
adequate housing. The number of the Missouri office, located in
Columbia, is (573) 876-0976. The number of the St. Louis office is
St. Louis Housing Authority
– In Missouri there are two centers for this agency. HUD provides
housing subsidy programs to individuals who qualify.
In St. Louis County, call: (314) 428-3200
In St. Louis City, call: (314) 531-4770
Additional Federal Government Programs
The federal government maintains a Federal Information Center
telephone service for answering and referring calls on federal
programs. These numbers are toll-free. All other areas call
Better Business Bureau of Kansas City
8080 Ward Parkway, Suite 401
Missouri State Department of
301 West High Street, Room 530
Consumer Protection Division
of the Attorney General's Office
815 Olive St., Suite 200
In Kansas City:
Better Business Bureau
15 Sunnen Dr., Suite 107
For information on the Association on Aging Retired Persons
(AARP) employment program, if you live in the City of St. Louis
please call (314) 918-7563. If you live in St. Louis County, please
call (314) 830-3600. If you live in Madison County, IL, please call
(618) 876-5258. If you live in St. Clair County, IL, please call
Missouri Division of Employment Security Job Service
Offices are located throughout the state of Missouri.
Consult the yellow pages under "Employment Agencies” and look for
“Job Service.” You may also look under the major listing
"Missouri-State of" in the blue pages and find "Division of
In St. Louis, the Federal Job Information Center number
is (314) 539-2285
For employment discrimination problems, contact the U.S
Government Wage and Hour Division, U.S. Department of Labor:
Kansas City – call (913) 551-5721 or (866) 487-9243
St. Louis – call (314) 539-7800 or (800) 669-4000
When you are in need of legal assistance, contact the free
legal service organizations listed below or consult your local
telephone directory for branch offices.
Legal Aid of Western Missouri, Inc.
1125 Grand Avenue, Suite 1900
Kansas City, MO 64106
Legal Services of Eastern Missouri, Inc.
4232 Forest Park Avenue
St. Louis, MO 63108
1-800-444-0514 toll free
Lasting Solutions Project
Domestic Violence and Abuse
4232 Forest Park Avenue
St. Louis, MO 63108
(314) 534-4200, Ext. 1244
The Federal Building
801 Broadway P.O. Box 1276
Hannibal, MO 63401
1-800-767-2018 toll free
Mid Missouri Legal Services Corporation
205 E. Forest Street
Columbia, MO 65203
1-800-568-4931 toll free (9-11am)
Legal Services of Southern Missouri
2872 South Meadowbrook
Springfield, MO 65807
(417) 881-1397 or
1-800-444-4863 toll free
Legal Services of Southern Missouri
1412 Highway 72 East
P.O. Box 135
Rolla, MO 65402
1-800-999-0249 toll free
P.O. Box 349
116 North Main
Charleston, MO 63834
1-800-748-7456 toll free
If a legal aid office cannot handle your case, check the sources
listed below for referral to the private bar in your community or
contact your local office of the Area Agency on Aging (listing at the
front of this section) for further information.
Lawyer Referral Service
P.O. Box 110
Lawyer Referral Service of Bar Association of Metropolitan St. Louis
Hours: 8:30 a.m. - 3:00 p.m.
Monday - Friday
NO WALK-INS, TELEPHONE CALLS ONLY
Senior Citizens should contact the Area Agency on Aging in their area
(see above) for transportation information.
Senior citizens can also contact the regional office of OATS, Inc.
for details about how OATS buses operate in your county.
2572 Lemay Ferry Road
St. Louis, MO 63125
2921 N. Belt Highway
St. Joseph, MO 64508
401 West Elm, P.O. Box 613
Shelbina, MO 63468
2501 West Main
Sedalia, MO 65301-2572
3259 E. Sunshine, Suite L
Springfield, MO 65804
601 Business Loop 70W, Suite 216A
Columbia, MO 65203
2501 Maguire Blvd, Ste. 101
Columbia, MO 65201
For specific transportation information in other areas:
Senior citizens and persons with disabilities should contact the St.
Louis Area Agency on Aging, at (314) 612-5918 or (877) 612-5918. A
caregiver transportation program that reimburses caregivers in part for
some of their transportation expenses is also available.
St. Louis County
The St. Louis County Office of Family and Community Services, County
Older Resident Programs (CORP) has a transportation program, 121 South
Meramec, Clayton, MO 63105, (314) 615-4516.
Share-A-Fare: (816) 842-9070. Door-to-door transportation for
elderly persons or persons with a disability. Once the application is
turned in, there is a 21-day wait before services will begin.
Senior citizens in the southeast part of Missouri should contact the
Southeast Missouri Transportation Services (SMTS) at
1-800-392-0754. Call the Department of Health and Senior Services or the
Division of Family Services office nearest you for more information.
HEALTH CARE INFORMATION
Caregiving in America, Kansas City’s Resource Guide to the Most
Important Health Care Issue of the 21st Century
Alliance on Aging
6025 Martway, Suite 101
Mission, Kansas 66202
Center for Practical Bioethics
111 Main St.
Kansas City, Missouri 64105
The Family Conservancy
Kansas City, KS 66101
Local Investment Commission
3100 Broadway, Suite 226
Kansas City, Missouri 64111
Metropolitan Lutheran Ministries
Kansas City, Missouri 64109
Offers emergency assistance for utilities and medicine; a Senior
Companion Program; a food pantry/commodity foods program; case
management; a Phone Friends program; and a Friendly Visitor Program
Jewish Senior Network
c/o Jewish Foundation of Greater Kansas City
5801 West 115th Street, Suite 201
Overland Park, Kansas 66211
Offers information and referral services for all persons. For people of
the Jewish faith only: needs assessment, case management, and financial
subsidies for goods and services as needed.
KC Connect Senior
600 Broadway, Suite 200
Kansas City, MO 64105
healthcare information related to seniors, please call the Area Agency
on Aging in your area (locations listed on page 55).
Printing History/Copyright Information
First Printing - September, 1977
Second Printing (Revised Edition) - September, 1978
Third Printing (Third Edition) - May,1979
Fourth Printing (Fourth Edition) - October, 1981
Fifth Printing (Fifth Edition) - February, 1984
Sixth Printing (Sixth Edition) - November, 1987
Seventh Printing (Seventh Edition) - October, 1990
Eighth Printing (Eighth Edition) - January, 1992
Ninth Printing (Ninth Edition) - January, 1995
Tenth Printing (Tenth Edition) - February, 1998
Eleventh Printing (Eleventh Edition) - November, 2000
Twelfth Printing (Twelfth Edition) - April, 2003
Thirteenth Printing (Thirteenth Edition) - April, 2004
Fourteenth Printing (Fourteenth Edition) April, 2005
Fifteenth Printing (Fifteenth Edition - April, 2006
Sixteenth Printing (Sixteenth Edition) - April, 2007
Seventeenth Printing (Seventeenth Edition) - February, 2009
Eighteenth Printing (Eighteenth Edition) - March, 2011
Copyright 1977, 1978, Legal Services of
Eastern Missouri, Inc. and The Bar Association of Metropolitan St. Louis
Copyright 1979, 1981, 1984, Legal Services of Eastern Missouri, Inc. and
The Bar Association of Metropolitan St. Louis
Copyright 1987, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 1990, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 1992, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 1994, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 1998, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2000, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2003, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2004, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2005, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2006, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2007, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2009, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Copyright 2011, Legal Services of Eastern Missouri, Inc. and The Bar
Association of Metropolitan St. Louis
Legal Services of Eastern Missouri, Inc.
(formerly Legal Aid Society of the City of St. Louis)
4232 Forest Park Avenue
St. Louis, Missouri 63108
The Bar Association of Metropolitan St. Louis
720 Olive Street, Suite 2900
St. Louis, Missouri 63101
The publication is funded in part by a grant from the Missouri Bar
Foundation and is intended to provide the public with law-related
information. It is not intended to render legal advice. The Foundation
and its board of directors are not responsible for any information or
representation provided herein.