Archives for elder care

Estate Planning Is More Than Writing a Will

“Elder Law” is a comprehensive area of legal practice that includes not just “estate planning” (legal documents that protect you and your family in event of “worst case scenario”) but also any legal action that is needed to plan, protect, or care for a vulnerable adult.   Elder law is one area in which an ounce of prevention is better than a pound of cure.   Everyone needs this sort of planning, sooner or later.

It’s a fact that any one of us could have an accident at any time, at any age.  (For example, if you were to be in a car crash, who would open your mail or pay your bills?)  If you haven’t drafted legal documents that govern what would happen then, (1) it would be too late to fix it yourself and (2) court action could be required to fill the gap.  This is why every person over the age of eighteen should at least have an attorney review their needs and, ideally, draft the appropriate planning documents.

Some examples of the types of documents elder law attorneys can assist with are:

  • Powers of Attorney (general and specific, durable and non-durable)
  • Health Care Powers of Attorney
  • Living Wills
  • Special Needs Trusts
  • Adult Guardianship cases
  • Adult Conservatorship cases
  • Advocacy for Care Issues
  • Referral and Resources for Care
  • Wills
  • Probate Administration

ESTATE PLANNING:  There is more to “estate planning” than filling in a will form off the internet!   Good estate planning demands a comprehensive approach to both strategy and implementation.  Think of it this way:  Anybody can give someone a ball and have them run around a football field, but it takes a bit more than that to score a goal.  In my practice, each client’s unique needs, goals, circumstances are discussed, and the entire plan is designed so that all the moving parts work together.  My goal is for each person to have a custom tailored, comprehensive plan not only for their estate, but for any time of disability or health crisis.   I want my clients to score the goal of having a plan that works well (strategy) and does what they want it to do (gets the ball over the goal line) at their time of need.

ADULT GUARDIANSHIP:  But sometimes, for one reason or another, advance planning for smooth transitions isn’t possible.  A young person is in a car wreck.  An elderly person develops dementia.  A child with mental disability is reaching the age of emancipation.  In these cases, an adult guardianship may be needed.  “What is an adult guardianship?” you might ask.   If an adult cannot take care of themselves or their finances, it is often (not always) necessary for a family member or other concerned party to petition the Probate Court to establish an adult guardianship or conservatorship.  If a probate court determines that a person is incapacitated and in need of protection, the court may appoint a responsible person to manage their care or finances.  In South Carolina, a person appointed to manage care for a person is called a Guardian.  A person who is appointed to manage finances for a person is called a Conservator.   Sometimes only one or the other is needed, sometimes both are.  Although the two roles (care and finances) are usually managed by the same person, they are separate roles and actually require two, separate court actions.

The decision to seek an adult guardianship or conservatorship is not one to be taken lightly.  The petitioner seeking to be appointed guardian or conservator must prove not only that a guardianship or conservatorship is needed for protection of the vulnerable adult, but also that the petitioner is the appropriate person to be appointed.   A finding of incapacity limits the choices and decisions the vulnerable individual is able to make.  After a person is appointed as guardian or conservator is appointed, the guardian or conservator will be held accountable by the court.  Periodic reports and accountings will be required.   Additionally, the process involves numerous professionals such as physicians, attorneys, and social workers.   Services of an attorney are generally required.

SPECIAL NEEDS TRUSTS:   Individuals who have severe disabilities often face sizeable expenses, and often these expenses are covered in whole or in part by public benefits.  Yet, any funds independently received might cause the individual to be disqualified from public benefits.  This is not only expensive, it can also cause significant disruption of the person’s continuity of care.  Special Needs Trusts are a way to enable the person to receive the benefit of funds without becoming disqualified from public benefits.

PROBATE ADMINISTRATION:  It goes without saying that assisting fiduciaries with administration of probate estates, trusts, and reports required of representative payees is part of the work of an Elder Law Attorney.

If you or a loved one has needs in the area of Elder Law or advance planning for any kind of disability, I invite you to contact me to discuss the issues further.  My goal is to provide cost effective, compassionate, and competent representation for individuals and families in need of elder law services, or appropriate referrals in cases outside my areas of experience.  (In the contact form below, please supply general information only, not any confidential information.)

Medicare Payment for Rehab After Hospital Stays

I want my clients who are eligible for Medicare (and their families) to understand that whenever they go to a hospital, it is important to know and to clarify their billing status.  Hospitals are increasingly categorizing stays as for “observation” or “outpatient” even if the patient is in the hospital for several days.  This is because hospitals have a large financial incentive to classify an individual as outpatient.  (An outpatient stay is covered under Part B of Medicare.  An inpatient stay is covered under Part A of Medicare.)

The rub for you is that, under the Medicare statute, an individual must have an inpatient stay in the hospital of at least three consecutive days, not counting the day of discharge, in order to meet Medicare criteria for coverage of post-acute care in a skilled nursing facility (SNF).   A simpler way of saying this is that Medicare will only pay for “rehab” if the patient is being discharged from in-patient care.    The bottom line for my clients is that, if you or your loved one is not “admitted” to the hospital in the first place, Medicare will not pay for “rehab.”  It’s important to clarify this with the hospital!

 HERE is a page with self-help resources if you find yourself being impacted by this issue personally.   Additionally, the National Academy of Elder Law Attorneys (NAELA) is requesting your help in lobbying to eliminate this loophole that is being used to deprive patients of reimbursement for legitimate and cost saving health care measures.    HERE is a link to a page on the web site of NAELA where you can learn more and sign on to support legislation designed to fight this technicality.

If you find yourself needing my assistance with an issue related to Medicare, feel free to contact me using the contact form below.

When to suspect Undue Influence or Exploitation of Vulnerable Adult

Has an aged friend or loved one had a shift of attitude or begun acting strangely?  Elder Abuse doesn’t necessarily leave physical bruises.   Abuse includes any kind of abuse of power and exploitation of a vulnerable adult.  It is not always obvious or easy to put your finger on.   Indeed, the elderly person themselves may not even realize they are being abused or exploited.   For example, suppose an elderly person needs some help shopping and happens to purchase a gift for their helper while they are out.  Where is the line between a reasonable gift, versus being taken advantage of?   Sometimes that is not an easy thing to tell.  This post gives some signs to look for.

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An Introduction to Elder Mediation, or Mediation in Elder Law Cases

Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate?  If so, your family may benefit from Elder Mediation.  Elder Mediation offers the same benefits as other mediation:  it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution.  There are other factors which make Elder Mediation very different from other types of mediation.

Elder mediation is distinguished from other forms of mediation by the types of issues involved.  There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a crisis, such as when an Elder has fallen and decisions must be made quickly; and (3) mediation to settle disputes over estate matters.

In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity.  Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult.  Elder mediation helps embattled family relationships overcome these challenges in two ways.  First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships.  Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict.  The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.

Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help.  No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward.  And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit.  This is where an Elder Mediator adds key value.  A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement.  When these measures are taken, there is much less likelihood of later challenge.

Sometimes the barriers to agreement can be profound.  Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer.  In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to the serious issues that every aging family will go through.  While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.

A family navigating the path of caring for an elder may also encounter unforeseen obstacles.  Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry.  For example, suppose one of the adult children has mental or physical disability.  That child may have been able to function by living at home or receiving substantial help from the parent.  As the parent ages and becomes less able to “take care of” that person, other family members may become more acutely aware that something doesn’t seem right.  Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds.  Unfortunately, sometimes adult siblings may have be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent.  These times of crisis are challenging for families.  The presence of a neutral mediator can help keep the conversation on track.

Another  challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be.  Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things.  Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind.  The CEO of a corporation may find himself being placed in the role of “little brother” or the sister’s concerns may be dismissed as too “selfish”.  The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check” concerning the veracity of their viewpoints.

Xan with Papa Bill

Families benefit from communication

These are just a few of the issues!  Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to challenges of each unique situation.

In selecting an Elder Mediator, seek a well seasoned mediator who has special skill and training specifically in Elder Mediation.  The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation.  The person should have expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) evaluation for competency and capacity, taking special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow.

Last but not least, a good Elder Mediator will run a tight ship.  When emotions get stormy, the seas can get choppy.  A good Elder Mediator will calm the waters by keeping the conversation focused and civil.  For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.

As difficult and challenging as conversations about Elder issues may be, wise is the family that has them.  While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be.  Yes, Elder Mediation may be time consuming and complex.  Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved.  Yet, consider the cost of doing nothing:  lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits.

A family can pretend nothing is wrong and “fake” peace, or it can sue each other and “break” the peace.  Or, it can deal honestly and fairly with the issues and truly, “make” peace.  The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace — is, by far, the best way.

Additional Resources

Association for Conflict Resolution, Section on Elder Decisions and Conflict Resolution, click HERE

A page on my site with links to other articles about Elder Mediation, click HERE

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