For Caregivers, Ensuring Legal Matters Essential

Doctor laying hand on senior man's shoulder

Doctor laying hand on senior man’s shoulder

Caregivers of people with serious illnesses, particularly cognitive issues of the elderly, have a lot on their plate, but they also have an obligation to make future legal preparations for their loved ones.
“As a caregiver, you should begin making legal preparations soon after your loved one has been diagnosed with a serious illness,” states an article on the webmd website. “People with Alzheimer’s disease and other long-term illnesses may have the capacity to manage their own legal and financial affairs right now. But as these diseases advance, they will need to rely on others to act in their best interests. This transition is never easy. However, advance planning allows people with a long-term disease and their families to make decisions together for what may come.
“Clearly written legal documents that outline your loved one’s wishes and decisions are essential for caregivers. These documents can authorize another person to make healthcare and financial decisions, including plans for long-term care. If the person being cared for has the legal capacity, the level of mental functioning necessary to sign official documents, he or she should actively participate in legal planning. To give your loved one the best care possible, obtain legal advice and services from an attorney experienced with these issues. If the person you’re caring for is age 65 or older, consider hiring an attorney who practices elder law, a specialized area of law focusing on issues that typically affect the elderly.”
Webmd.com advises caregivers to be certain that important documents are in place, including:

  • Power of attorney
  • Durable power of attorney for health care, also known as health care proxy
  • Living will
  • Living trust
  • Will

 

Elder Mediation Can Help Keep Siblings Friends

The stresses and strains of caring for an aging parent, and especially determine what form that care should take, can push apart even the closest of siblings.

A recent story in The New York Times describes how two sisters nearly had a falling out after the death of their father in 2011 when it came to what was best for their 84-year-old mother.
“We were all confused and upset about the situation,” Rosie McMahan, 51, of Amherst, Mass., an educator and a counselor for teenagers, told the newspaper. “We had so many questions. How much respite should my sisters offer me? Should Mom’s name stay on the deed of the house? Where will either of them go if I can’t keep taking care of them?”
“It was hard to figure it out,” said her 50-year-old sister Therese, a midwife in Somerville, Mass. “How do we make decisions? What do we all feel comfortable with? What are the guidelines we’re going to adhere to? Every conversation ended with someone crying or hanging up, or both.”
“To help them navigate those difficult waters, they went to mediation to learn how to ‘stay in each other’s life and not have it be destructive,” as Rosie put it.”
“We wanted to stay connected as siblings, but if you don’t get someone else to help you out, you kind of fall prey to your childhood antics,” she said. “A mediator makes a hard job a little easier.”
“Elder mediation, an emerging area within family mediation, has gained so much traction that in 2009 the Association for Conflict Resolution, a professional organization, started an elder decision section,” the article states.
The story cites a 2001 report in the journal Conflict Resolution Quarterly that showed nearly 40 percent of adult children who cared for a parent said they experienced major conflict with a sibling. That conflict could be “over the amount of care, or money, or who should be making decisions, or just deep-rooted sibling rivalry over who does Mom or Dad love best,” said the report’s author, Deborah B. Gentry, a professor emeritus at Illinois State University.
“Most of the time siblings want what’s best for the parents,” Susanne Terry, a mediator in Danville, Vt., told the author. “They just look at it in a different way.
“Our goal is to help them figure out what their common interests are, so they can work together to find solutions.”

Article Predicts Technology May Change How People Age

Technology can’t halt the aging process, but a Huffington Post piece points out that it may change the way people grow older.

“Technology is changing everything, including how we will age and the quality of our senior years,” begins the story by Ann Brenoff ” Mobile devices, wearable gadgets and Internet-based technologies will help older adults age in place while monitoring their health and safety.”

  • The piece went on to site these specific coming advancements as having an impact on older Americans:
  • Talking street signs
  • Cars that drive themselves
  • Video-call doctor visits
  • Remote patient monitoring.
  • Online medical records.
  • Robots as caregivers.
  • A proliferation of LED lights in unexpected places
  • Safety monitors that “go way beyond nanny-cams
  • Homes that age along with the occupants
  • More apps to help people better understand their bodies

Ethical Guidelines For Helping Older Clients Offered By ABA

For attorneys who focus all or part of their practice on the needs of older clients, the American Bar Association advises adhering to the “Four C’s of Elder Law Ethics.”
They are:

  • Client identification
  • Conflicts of interest
  • Confidentiality
  • Competence

“First, all lawyers have an ethical obligation to make it very clear who their client is,” the ABA advises on the first point. “The client is the person whose interests are most at stake in the legal planning or legal problem. The client is the one, the only one, to whom the lawyer has professional duties of competence, diligence, loyalty and confidentiality.”

ElderlyWomanInGlasses (Photo credit: Wikipedia)

ElderlyWomanInGlasses (Photo credit: Wikipedia)

Avoiding a conflict of interest relates directly to client identification, in that “in most situations, a lawyer may only represent one individual.”
“For example, when legal planning involves property, such as a family home, in which several people have an interest, these interests are actually or potentially conflicting,” the newsletter states. Sometimes joint representation is possible, even with potential conflicts of interest, but it is more likely that we will be representing only the older person whose interests are at stake.”
Confidentiality, which is at the very heart of all attorney-client matters, simply means the lawyer may not share any information with other family members unless given permission to do so.
“Some clients want all information shared and family members involved in discussions,” the ABA points out. “Some merely want family members to be given general updates. Some want complete confidentiality. It differs from person to person.”
The final “C” is a special ethical responsibility when handling the legal affairs of older clients, according to the newsletter.
“Lawyers must treat the impaired person with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants.
“Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and what it is they want, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer all the questions, it makes it difficult for us to determine our client’s level of understanding.”

Long-Term Care Cancellations Require Better Notification

It should never happen again.
And whether it’s by passage of a new law or a rule change at the Virginia Bureau of Insurance, maybe it never will.
A recent story in the Richmond Times-Dispatch brought to light the plight of people left without long-term care for the elderly. The story focused on the Pirron family. For more than a decade, David and Anne  Pirron paid almost $400 in premiums a month long-term-care policy offered by John Hancock Life Insurance Co.
“Their son, Michael Pirron, had helped them research a policy, and later he was added as a third-party designee so that he also would get notices about changes to the plan,” according to the story by Tammie Smith.
“About a year-and-a-half ago, my mother had a major health issue,” Michael Pirron, the CEO at Image Makers, a Richmond-based technology consulting company, told the newspaper. “Realizing my father was not managing my mother’s health well, I called the long-term-care (policy).”
“To his surprise and dismay, Pirron said he was told the plan had been canceled seven months before because of nonpayment,” Smith wrote. “Apparently his father, who had begun to show some of the cognitive impairments of Alzheimer’s, had inadvertently canceled the automatic payments while intending to cancel another automatic bank draft. Pirron said the company that wrote the policy sent letters to his father, who just stuffed them into a drawer. As the third-party designee, Pirron was supposed to get notices as well. The insurance company said a separate letter was sent to him, but Pirron is adamant that he never got anything. If he had, Pirron said, he would have corrected the matter.
“The company refused to reinstate the policy. Pirron appealed but was denied.”
Although nothing can now be done for his parents, Michael Pirron has been working to get a bill passed in the state’s General Assembly that would force long-term policy insurers to notify third-party designees by certified mail when a policy is canceled.
“The bill this year, House Bill 719 sponsored by Del. Jennifer L. McClellan, D-Richmond, was considered by a House subcommittee in January but did not make it out after state insurance officials said they would work on an administrative fix,” according to the Times Dispatch. “The state Bureau of Insurance … filed a notice of a proposed rule change that addresses Pirron’s concern about third-party designees getting notices. The proposed change also requires companies to keep receipts showing cancellation notices were sent.
“McClellan said that because the rulemaking process was in the works, her bill did not go forward.”

Less Costly Options Exist To Afford In-Home Care

While in-home care for elderly parents or other relatives may be a kinder approach than placing them in a nursing facility, it can also be a very pricy proposition.

English: My parents.

(Photo credit: Wikipedia)

A recent Caring.com article offers some creative approaches to affording this option.
“In general, pay rates in urban areas are higher than in rural communities, and still higher on the east and west coasts than in the central United States,” according to the article. “Costs also depend on whether you’re looking for homemaker services, defined as ‘hands-off’ care, such as cooking, cleaning, running errands, and general companionship, or home health aide services, which include personal care, such as bathing and dressing. A comprehensive 50-state survey of care costs by MetLife found that as of 2011, average hourly rates for home health aides ranged from $16 to $29 across the country, while rates for homemaker aides without medical training ranged from $13 to $24. These rates do not seem to be changing much over time. According to Genworth’s 2012 data analysis, the median rate for in-home care of $18 to $19 an hour nationwide is rising by only 1.15 percent every five years.”
Among the advice on making this sort of care more affordable are reversible mortgages, pensions for veterans that may have previously gone untapped and making alterations to life insurance policies no longer needed to care for others.
“The way this works is that your loved one sells the policy back to the issuing agency for 50 to 75 percent of its face value, an amount determined based on the amount of the policy, the monthly premiums, and the policy holder’s age and health,” the article stated. “There may be restrictions; some policies can only be cashed in if the policyholder is terminally ill. But many are quite flexible. And if yours isn’t, there are settlement companies that will buy the policy, also at 50 to 75 percent of face value, then pay the premiums until the policyholder’s death, when the company will collect the benefits.
“If the company that issued the policy won’t cash it in, don’t worry. Your loved one may be able to sell the policy for a ‘life settlement’ or ‘senior settlement.’ In this case the settlement company pays the premiums until the policyholder dies, then receives the benefits that would originally have gone to the policy’s original beneficiaries.”

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Court sides with nursing home against woman’s grandchildren

An elderly New York State woman thought she was doing the right thing for her grandchildren.
A court ruled otherwise, in a case of estate planning gone horribly wrong.
The woman, Lillian Hellman, sought to have four annuities, which she obtained in her name with her in control of the accounts, transferred to each of her grandchildren, making her insolvent and eligible for Medicaid once she had entered a nursing home.
Not so fast, nursing home officials said, and a court agreed with them, according to an article on the website elderlawanswers.com.
“In 2000, Lillian Heather purchased four annuities for each of her grandchildren as part of her estate plan,” the website stated. “The annuities named the grandchildren as annuitants and beneficiaries, but Ms. Heather retained control of the accounts. Ms. Heather also appointed her grandchildren as her attorneys-in-fact under a power of attorney. In 2006, Ms. Heather entered a nursing home. One granddaughter, Kristin Goldman, signed the admission agreement as her designated representative. After entering the nursing home, Ms. Heather annuitized the annuities and the full value was transferred to the grandchildren. She applied for Medicaid benefits, but the state denied benefits because she had transferred assets for less than fair market value.
“The nursing home sued the grandchildren for fraudulent conveyance, arguing that they had transferred Ms. Heather’s assets for no consideration, rendering her insolvent. The nursing home also sued Ms. Goldman for breach of contract, arguing that Ms. Goldman had access to Ms. Heather’s assets and should have used them to pay for her grandmother’s care.”
The New York Supreme Court in Queens County sided with the Chapin Home for the Aging to the tune of $287,893.95.
“According to the court, it was undisputed that the transfers were made without consideration,” elderlawanswers related. “Moreover, the grandchildren did not present any evidence that the transfers did not make Ms. Heather insolvent. Nevertheless, the court rules that Ms. Goldman is not personally liable for breach of contract because the admission’s agreement did not make the designated representative personally liable.”

Ugly Family Scrape Nearly Cost Elderly Man His Home

A sad story out of Ohio has a happy ending, but the saddest part of all is that it didn’t have to happen in the first place.
Just a few minutes of conversation with an elder law attorney might have spared everyone involved a lot of anguish and heartache.
John Potter, a World War II veteran and retired train dispatcher for the Baltimore & Ohio Railroad, faced eviction from the home he built 56 years ago in Zaleski, Ohio, a small community south of Columbus, according to reports on ABC News and Real Estate AOL.
The person threatening him with eviction: his daughter.
“In 2004, John Potter and his wife, who has since died, gave the general power of attorney to his daughter for future matters if they declined in health, including to take care of her autistic adult brother, now 63,” the ABC News piece by Susanna Kim stated. “But unbeknownst to Potter, his daughter Janice Cottrill eventually used that power to convey the deed to the one-story home to herself. In 2010, Potter said he learned of the deed transfer and switched power of attorney to his granddaughter, Jaclyn Fraley, now 35.”
Potter sued his daughter and won his case in Vinton County (Ohio) Court but lost on appeal. The appellate court ruled “that the statute of limitations of four years had passed on the accusation of breach of fiduciary duty and thus the deed could not be handed back to Potter,” the ABC News story continued.
“Early this year, his daughter and her husband sent Potter an eviction notice, saying they had terminated his ‘existing lease.’ ”
“He doesn’t share that this hurts him, but you can tell that it’s hurting him,” Fraley told AOL Real Estate.
“She said it hurts her, too, explaining that she hasn’t spoken to her mother, aside from communication through lawyers, in two years.”
“When asked how he feels about being evicted by his daughter and son-in-law, Potter was at a loss for words,” ABC News reported.
“I just cannot believe my daughter would ever do anything like that to me,” he said.
Janice Cottrill declined to comment, according to Kim’s piece.
In the end, before an eviction hearing could take place, Jaclyn Fraley mounted an online campaign to raise $125,000 to buy back her grandfather’s home. She recently announced that the GoFundMe.com campaign had brought in $139,201.
“We have met out goal and it is so exciting,” Fraley wrote on the site. “We are in awe of all the love and support. We are still so speechless. Grandpa is amazed at all the love and support. He told me, ‘I never knew people could love an old man so much.’ ”
This ugly family feud could have been prevented if only the right legal advice had been sought the proper advice back in 2004 when he signed the durable power of attorney at a time of poor health.
“A durable power of attorney may be the most important of all legal documents,” according to an item on the website elderlaw.com. “This legal document gives another person the right to do certain things for the maker of the durable power of attorney. What those things are depends upon what the durable power of attorney says. A person giving a durable power of attorney can make it very broad or can limit the durable power of attorney to certain acts.”
In the case John Potter of Zaleski, Ohio, obviously some limitations should have been included.

Novel program brings legal assistance to people who need it most

A recent blog on the website of The New York Times highlighted a fine program in California that provides legal help for the elderly while giving real-life experience to law students.
The piece by Paula Span, author of “When the Time Comes: Families With Aging Parents Share Their Struggles and Solutions,” also brings a focus on an important issue, that of a segment of the population greatly in need of a great deal of legal assistance often not getting it.
“Consider the geriatricians working at the Lakeside Senior Medical Center, an outpatient clinic at the University of California, San Francisco,” Span writes. “Many of their patients, despite multiple chronic diseases and advanced age, have never filled out power-of-attorney documents or appointed someone to make health care decisions if they are unable to. Sometimes, the doctors suspect their patients might qualify for public benefits they are not getting, like food stamps or MediCal, the state’s version of Medicaid. Perhaps they face problems with landlords or appear to be victims of financial abuse, or they ought to have a simple will.
“In other words, they need lawyers. But trying to get frail, low-income seniors to consult an elder attorney can seem an insurmountable problem. How will they travel to a law office? Or pay a fee that can reach $300 an hour? Even if the doctors can refer them to a legal aid office, will their elderly patients actually make an appointment? Then remember to go?”
The solution at this particular location, and one that deserves to be duplicated all across the country, is that each semester eight students from the University of California Hastings College of the Law spend 12 to 15 hours a week at the clinic under a program called the Medical-Legal Partnership for Seniors.
“The physicians do the initial screenings, hear what their patients’ problems are, take the history and they essentially write a prescription: ‘Go down the hall and see my friends at U.C. Hastings for help with this housing issue,’ ” Sarah Hooper, who teaches at the University of California Hastings College of the Law, was quoted as saying.
“On the one hand, we have an aging population, for whom understanding a legal document and getting it witnessed and notarized can be daunting, even if people don’t have to do battle over benefits,” Span wrote in conclusion. “On the other, we have law schools scrambling for ways to give their students hands-on experience.
“These folks need each other.”

Legal Specialty Evolved Over Time

Society has always, to some extent, realized its older members were special, for their institutional memory, for the wisdom acquired over the years and for many other traits.

That older Americans have special legal needs has been recognized relatively recently.
“Much has been written of late about the aging of America, and indeed of the world as we are all living longer,” according to an article on the website of Stetson University by Rebecca C. Morgan.  “Laws have been created specifically to deal with the legal problems faced by older Americans. There is a label for this area of law–elder law. Elder law has grown from a specialty practice to a general area of practice within which an attorney may specialize.
“It took a while for the public to grasp the concept of elder law. In fact, comments were frequently made about the name of the practice area. However, one thing that distinguished elder law from other areas of practice is the holistic nature of elder law. Although the practice area label tends to come from the tasks performed by lawyers, elder law has come to be recognized not only by the legal tasks performed by the lawyers, but by the attorney’s function as a counselor to the client and/or the client’s family, the attorney’s knowledge of the aging services network and the nature of the representation of the clients in the later years of their lives.”
Once the specialty became recognized, Morgan says, it became attractive to not only potential clients but also to lawyers.
“Why the growth and evolution of elder law?” she writes. “One reason may be the demographics. Another reason may be the attraction to a holistic law practice, a more problem-solving or helping practice area rather than the typical litigation model. Others attribute the growth more to market forces or the complexity of the area of law. Perhaps all of these reasons are true. But in addition, maybe elder law as a field has grown simply because of the satisfying nature of the practice; an elder law attorney truly has the opportunity to make a difference in the lives of his or her clients, oftentimes during the final phase of the clients’ lives and many times in a crisis. The elder law attorney has the opportunity to ensure the client has the most quality of life as possible during the last years of his or her life.”

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