Why A Health Care Proxy Makes Sense
Why A Health Care Proxy Makes Sense

Why A Health Care Proxy Makes Sense

Why A Health Care Proxy Makes Sense. Having a Health Care Proxy or health care power of attorney in place before it is needed, is one of the best ideas of estate planning, along with having a Power of Attorney in place before it is needed. Why? This is because taking a pro-active approach to both of these documents, means that when the unexpected occurs and that is exactly how things occur—unexpectedly—the person or persons you have named for these important roles will be able to step in quickly and made decisions.

Why A Health Care Proxy Makes Sense. Time is often of the essence, when these documents are needed.

According to the article “Medical guardianship versus power of attorney” from The News Enterprise, a health care proxy is a document that grants another person the power to make medical decisions for you, when you no longer have the ability to make those decisions for yourself. It is known by a few other names, depending on the state where you live: health care proxy, a medical power of attorney or a health care surrogate.

It needs to have HIPAA-compliant language, which will allow the person you name the ability to review medical information and discuss protected health information with your health care providers.

A health care proxy may also include language for an advance medical directive, which gives instructions for end-of-life decisions. This is often called a “living will,” and is your legal right to reject medical treatment, decisions about feeding tubes and the number of doctors required to determine the probability of recovery and pain management.

A health care power of attorney does not generally empower another person to make decisions, until you are unable to do so. Unlike a general durable power of attorney, which permits another person to make financial or business decisions with you while you are living, as long as you are able to understand your medical situation, you are still in charge of your medical decisions.

A guardianship is completely different from these documents. A guardian may only be appointed, if a judge or jury finds you wholly or partially disabled in such a way that you cannot manage your own finances or your health. The appointment of a guardian is a big deal. Once someone has been appointed your guardian, you do not have any legal right to make decisions for yourself. A court will also appoint a legal fiduciary, who will make your financial decisions.

There are record-keeping requirements with a guardianship that do not exist for a power of attorney. The court-appointed representative is responsible for reporting to the court any actions that they have taken on your behalf.

To have power of attorney documents executed, the person must be capable of understanding what they are signing. This means that someone receiving a diagnosis of dementia needs to have these documents prepared, as soon as they learn that their capacity will diminish in the near future.

If the documents are not prepared and executed in a timely fashion, a guardianship proceeding may be the only option. Planning in advance is the best way to ensure that the people you trust are the ones making decisions for you. Speak with an experienced estate planning attorney now to have these documents in place.

Reference: The News-Enterprise (Oct. 13, 2019) “Medical guardianship versus power of attorney”

 

What’s the Latest in the Former “Young and the Restless” Star’s Guardianship Case?
What’s the Latest in the Former "Young and the Restless" Star’s Guardians

What’s the Latest in the Former “Young and the Restless” Star’s Guardianship Case?

What’s the Latest in the Former “Young and the Restless” Star’s Guardianship case?

Former Young and the Restless star Kristoff St. John’s ex-wife’s Allana is asking a judge to make her guardian of their 14-year-old daughter Lola, so she can represent her in any issues concerning her father’s death.

Yahoo Entertainment’s recent article, “Kristoff St. John’s Ex-Wife Files Guardianship Case To Protect Daughter With Late Star,” reports that Alana appears to be saying that any life insurance paid out since St. John’s passing didn’t go to Lola. She believes Lola is entitled to compensation.

“Due to the untimely death of minor’s biological father on February 3, 2019, the minor will be receiving an inheritance. In order to secure her inheritance, she will need a to defend a will contest and bring claims for the recovery of life insurance proceeds that were wrongfully distributed to a third party. Minor should also be entitled to a family allowance from her father’s estate,” Alana argues in the court document.

Kristoff St. John’s eldest daughter Paris is already fighting the late soap star’s father, over who should control his estate.

The contest is over an alleged handwritten will, which Paris St. John says doesn’t qualify as a valid last will and testament.

Paris argues that the holographic will “was written inside a private diary and was not intended to be seen by third parties,” adding, “The document would never have been found, if someone had not opened the decedent’s private journal.”

Paris has filed court documents in Los Angeles requesting to become the executor of the Young & the Restless star’s estate, according to The Blast.

It looks like Alana thinks the ongoing estate battle may get bitter, and she wants to make certain that Lola will come out in the end with the rightful share of her father’s assets.

Kristoff St. John was found dead on February 3, 2019 in his home in the San Fernando Valley. He was 52.

Reference: Yahoo Entertainment (August 27, 2019) “Kristoff St. John’s Ex-Wife Files Guardianship Case To Protect Daughter With Late Star”

What’s the Latest in the Former “Young and the Restless” Star’s Guardianship case? His youngest child’s guardianship case is pending. This will allow her to participate in a will contest and make claim to life insurance proceeds distributed to a third party.

 

Why Advance Directives are Needed
Why Advance Directives are Needed

Why Advance Directives are Needed

Why Advance Directives are Needed and they should be accessible to the family.

There are two sad parts to this story. The first was that the family panicked and had a feeding tube put in, despite their mother’s wishes. The second, says WRAL in the article “Advance directives lift burden of tough decisions at end of life,” was that after the woman died several years later, her family found the advance directive.

Why Advance Directives are Needed: Without knowing about a loved one’s wishes for their end-of-life care, it’s hard to honor them. That’s why documentation, like advance directives, are so important. So is telling your family where your important legal documents are.

What is an advance directive?

An advance directive is a broad legal term that can include a few different documents, but mostly includes a Living Will and a Health Care Power of Attorney. These documents give a person the ability to express what medical care they want and don’t want.

Cases like the women mentioned earlier highlight the importance of this kind of document. While her advance directive was misplaced, many people don’t have them at all. These are important to address non-financial end-of-life issues, both for the person and for their families.

Most people would prefer not to have life-prolonging measures implemented. Without this document, the decision to remove a breathing machine or a heart machine can be even more difficult for a spouse or a child. The burdens are not just emotional.

If there is no decision maker named and family members disagree about what their loved one would have wanted, a battle may break out in the family that results in a court fight.

A few notes on advance directives:

  • They can be created at any time, but most people tend to consider them at midlife or close to retirement.
  • The document can be amended at any time and should be reassessed through the course of life.
  • One decision maker should be appointed to avoid arguments.

Health care agents, doctors and loved ones should all be provided with copies, and the originals should be accessible. Some people put them on the refrigerator, so first responders can find them quickly.

Talk with your estate planning attorney about including an advance directive and a health care power of attorney among your estate planning documents. This is a burden that you can make lighter for those you love.

Reference: WRAL (Sep. 18, 2019) “Advance directives lift burden of tough decisions at end of life”

 

More Reasons to Review Your Estate Plan
More Reasons to Review Your Estate Plan

More Reasons to Review Your Estate Plan

More Reasons to Review Your Estate Plan. Every estate planning attorney will tell you that they meet with people every day, who sheepishly admit that they’ve been meaning to review their estate plan, but just haven’t gotten to it. Let the guilt go.

Attorneys know that no one wants to talk about death, taxes or illness, says Wicked Local in the article “Five Reasons to Review Your Estate Plan.” However, there are five times when even an appearance before the Queen of England has to come second to reviewing your estate plan.

You have minor children. An estate plan for a couple with young children must do two very important things: address the care and custody of minor children should both parents die and address the management and distribution of the assets that the children will inherit. The will is the estate planning document used to name a guardian for minor children. The guardian is the person who will determine where your children will live and go to school, what kind of health care they receive and make all daily decisions about their care and upbringing.

If you don’t have a will, the court will name a guardian. You may not like the court’s decision. Your children might not like it at all. Having a will takes care of this important decision.

Your estate is worth more than $1 million. While the federal estate plan exemptions currently are at levels that remove federal tax from most people’s estate planning concerns, there are still state estate taxes. Some states have inheritance taxes. Whether you are married or single, if your assets are significant, you need an estate plan that maps out how assets will be left to your heirs and to plan for taxes.

Your last estate plan was created before 2012. There have been numerous changes in state estate tax laws regarding wills, probate and trusts. This is not the only state that has seen major changes. There have been big changes in federal estate taxes. Strategies that were perfect in the past, may no longer be necessary or as productive because of these changes. While you’re making these changes, don’t forget to deal with digital assets. That includes email accounts, social media, online banking, etc. This will protect your fiduciaries from breaking federal hacking laws that are meant to protect online accounts, even when the person has your username and password.

You have robust retirement plans. Your will and trust do not control all the assets you own at the time of death. The first and foremost controlling element in your asset distribution is the beneficiary designation. Life insurance policies, annuities, and retirement accounts will be paid to the beneficiary named on the account, regardless of what your will says. Part of a comprehensive will review is to review beneficiary designations on each account.

You are worried about long-term care costs. Estate planning does not take place in a vacuum. Your estate plan needs to address issues like your plan, if you or your spouse need care. Do you intend to stay in your home? Are you going to move to live closer to your children, or to a Continuing Care Retirement Community? Do you have long-term insurance in place? Do you want to plan for Medicaid eligibility?

All of these issues need to be considered when reviewing and updating your estate plan. If you’ve never had an estate plan created, this is the time. Put your mind at ease, by getting this off your “to do” list and contact an experienced estate planning attorney.

Reference: Wicked Local (Aug. 29, 2019) “Five Reasons to Review Your Estate Plan”

 

The Difference Between Home Health and Home Care
The Difference Between Home Health and Home Care

The Difference Between Home Health and Home Care

Many people use the terms “home care” and “home health” interchangeably, which can cause confusion when you try to find funding for these services. This article will try to help you understand the difference between home care and home health.

What is Home Care?

Home care goes by a variety of names, including “aging in place,” “caregiving,” “in-home assistance,” “personal care” and “companion care.” The services do not include medical treatments. The people who provide these services are home care aides or caregivers. Because the services are non-medical, the worker category is “non-clinical” or “unskilled.”

Home care can include such things as preparing meals, assisting the older adult when eating, reminding him to take his medication and helping him to bathe, groom and dress. Depending on the needs of the person receiving the care, the tasks can include house cleaning, transportation and help with paying bills. The services usually get tailored to the individual client.

The total package of home care can involve multiple parties. For example, the older adult might have a home care aide who comes to the house for two or three hours every morning. The aide might help the client get ready for the day, with taking a bath, getting dressed and performing the morning grooming tasks. The aide might get the client’s breakfast ready, remind him to take his pills and make a sandwich for his lunch. Another person might come in once a week to clean the house, do laundry and batch cook some meals.

The client might use a grocery or meal delivery service. He could have a money manager make sure that his bills get paid.

Medicaid can pay for some of these services, if the senior qualifies for Medicaid. Some long-term care insurance policies can help with some of the cost. The remainder of the expenses is private pay.

Home Health Care

Skilled medical professionals provide home health care. These services usually take place after the doctor discharges the patient from the hospital, but she still needs some medical treatment, like physical therapy or care for a surgical incision. Depending on the treatment plan the doctor prescribes, the client might also receive health status monitoring, medical tests and the administration of drugs, including injections.

The medical professionals who provide home health care services include physical therapists, registered nurses, occupational therapists and other skilled healthcare workers. Sometimes the services last for a matter of weeks, until the doctor releases the patient. However, for some individuals with chronic conditions, the patient might need ongoing in-home medical treatments. The services might include teaching the patient skills to regain and maintain better health and function independently.

When a doctor prescribes home health care, Medicare will sometimes pay the expense of the services. If the client meets the low-income and other qualifications, Medicaid can bear the cost.

Overlap of Home Care and Home Health

When an older adult needs medical treatment in the home, he often also needs help with personal services. If a family member is unavailable to assist him, he might need to obtain the care from an agency. The fact many people need both types of services, home care and home health, contributes to the confusion.

References:

A Place for Mom. (accessed August 7, 2019) https://www.aplaceformom.com/planning-and-advice/articles/home-health-vs-home-care

 

What Should I Know About a Special Needs Trust?
What Should I Know About a Special Needs Trust?

What Should I Know About a Special Needs Trust?

What Should I Know About a Special Needs Trust?

Your disabled family member may be eligible for a number of government programs. However, Pauls Valley (OK) Democrat’s recent article asks “Can your family benefit from a special needs trust?” The article reminds us that these programs don’t cover everything. You may need to close the gaps.

A few government programs have eligibility restrictions, based on the level of financial assets that are available to the recipient. This means the financial help you’re wanting to provide may do more harm than good, unless you establish a special needs trust.

As the donor, you supply the funds. A trustee holds and administers them, according to your instructions. The beneficiary typically can’t use the trust for basic support or to receive benefits that can be provided by the government. The special needs trust can be used to provide specialized therapy, special equipment, recreational outings and other expenses.

When considering a special needs trust, What Should I Know About a Special Needs Trust? You’ll need to look at several issues with your attorney. However, there are two that are critical. The first is designating a trustee. You could name a family member or close friend as a trustee. While this works well for many, it has the potential to cause family conflicts. You could also name a trust company. This company can provide professional management, expertise and continuity of administration. A third option is to name an individual and a trust company as trustees.

The second critical issue with a special needs trust is funding the trust. You can fund the trust during your lifetime or have it activated when you die.

Note that you don’t have to be the sole donor. A special needs trust can be created so other family members can also contribute to it. The trust can be funded with securities (stocks and bonds), IRA proceeds, insurance death benefits and other assets.

You’ll need to understand the requirements of various federal, state and local benefit programs for people with disabilities, so that your loved one’s benefits are not at risk.

What Should I Know About a Special Needs Trust? Speak with an experienced elder law or estate planning attorney about how you can to make life better for a disabled child or family member with a special needs trust.

Reference: Pauls Valley (OK) Democrat (August 1, 2019) “Can your family benefit from a special needs trust?”

 

Dementia and Advanced Directive
Dementia and Advanced Directive

Dementia and Advanced Directive

Dementia and Advanced Directive.

The Roanoke Times advises in the recent article “What to do in absence of advance directive” to talk to an experienced elder care attorney to coordinate the necessary legal issues, when dementia may be at issue with a parent or other loved one. Next, ask your physician for a geriatric evaluation consultation for your loved one with a board-certified geriatrician and a referral to a social worker to assist in navigating the medical system.

It’s wise for anyone older than 55 to have advance directives in place, should they become incapacitated, so a trusted agent can fulfill the patient’s wishes in a dignified manner. Think ahead and plan ahead.

As a family’s planning starts, the issue of competence must be defined. A diagnosis of Alzheimer’s disease doesn’t necessarily indicate incompetence or a lack of capacity. At this point, a patient still has the right to make a decision—despite family members disagreeing with it. A patient’s competency should be evaluated after a number of poor choices or an especially serious choice that puts a patient or others at risk.

An evaluation will determine the patient’s factual understanding of concepts, decision-making and cogent expression of choices, the possible consequences of their choices and reasoning of the decision’s pros and cons. Healthcare professionals make the final determination, and these results are provided to the court.

If a patient passes the evaluation, she is deemed to have the mental capacity to make choices on her own. If she cannot demonstrate competency, an attorney can petition the court for a competency hearing, after which a trustee may be appointed to oversee her affairs.

The time to address these types of issues is before the patient becomes incapacitated. The family should clearly define and explore the topics of living wills, health care proxies, estate planning and powers of attorney now with an experienced elder law attorney.

Taking these proactive actions can be one of the greatest gifts a person can bestow upon herself and her loved ones. It can give a family peace of mind. If you put an advance directive in place, it can provide that gift when it’s needed the most.

Reference: Roanoke Times (June 17, 2019) “What to do in absence of advance directive”

 

You Need a Power of Attorney in Your Estate Plan
You Need a Power of Attorney in Your Estate Plan

You Need a Power of Attorney in Your Estate Plan

You Need a Power of Attorney in Your Estate Plan.

A power of attorney is an important legal document that allows a person, known as the principal, to designate a person of their choice to become their agent, acting on their behalf. This is usually done when the principal is unable to manage their financial affairs due to disability, illness or incapacity. It must be done while the principal is still competent, notes Delco Times in the article “What’s the difference between guardianship and power of attorney?” There are also instances when power of attorney is used when the principal is unable to conduct their own affairs, because they are traveling or are deployed overseas.

Related documents are the health care power of attorney and the durable power of attorney. A durable financial power of attorney is a document where the principal designates the powers that the agent may exercise over their finances. The powers granted by this document can be used by the agent, regardless of the principal’s capacity or disability.

The principal has the option to grant very broad authority to their agent. For instance, the principal could give their agent the authority to gift all their assets, while they are still living. That’s why it is very important for the specific provisions in the power of attorney to be carefully reviewed and tailored to the principal’s wishes. There are risks in naming an agent, since they are able to exercise complete control over the principal’s assets. The agent must be 100% trustworthy.

A health care power of attorney allows an agent to make decisions about the principal’s health. Note that this document is operative only when a copy is provided to the attending physician, and the physician determines that the principal is incompetent.

Both health care power of attorney and financial power of attorney may be revoked by the principal at any time and for any reason.

If the principal has not had these documents prepared in advance and then becomes incompetent by reason of injury, illness, or mental health issues, they may not have the legal right to sign the power of attorney. When this happens, it is necessary for a guardianship proceeding to occur, so that other people may be named to take charge of the person’s financial and health affairs. Advance planning is always preferred.

If an individual is born with a disability that impacts their capacity and upon attaining legal age, does not have the capacity to sign a power of attorney, then a guardianship proceeding will be necessary. The court must determine if the person is truly incapacitated and if there might be an alternative to appointing a guardian. Once the guardian is appointed, the principal no longer has the legal right to make decisions on their own behalf.

A guardianship is a much more restrictive tool than a power of attorney. For one thing, the power of attorney generally does not need the involvement of the court. There is always the possibility that a guardian is appointed who does not know the family or the individual. A durable power of attorney allows a person to appoint someone they know and trust to help them and their family, if and when they become incapacitated.

Speak with your estate planning attorney about how power of attorney works, and when guardianship issues might arise. Being prepared in advance by having the right documents in place, is always better than having the family going to court and hoping that the right decisions are made.

Reference: Delco Times (May 8, 2019) “What’s the difference between guardianship and power of attorney?”

 

Hospice Care Information
Hospice Care Information.

Hospice Care Information

Hospice Care Information.

Like hospice, palliative care is designed to relieve suffering and empower patients. However, palliative care can be used by any patient with a serious illness—it doesn’t require a terminal prognosis to qualify.

Hospice does require a terminal prognosis and is a more intensive service for when an illness has advanced.

AARP’s recent article, “How to Find a Quality Hospice,” explains that hospice care in America is most commonly provided in the patient’s home—or in a long-term care facility where the patient already lives. The hospice team will visit frequently.

“The ultimate goal for hospice care is to take in the patient and family, hold their hand and provide all the care they need,” says Jennifer Kennedy, senior director, regulatory and quality, for the National Hospice and Palliative Care Organization. That includes leaving the family with a belief that they did right for their loved one. “We only have one shot to get it right,” she says.

Hospice and palliative care experts recommend, if possible, interviewing several prospective hospices to weigh the type and quality of their services. When you’ve identified several promising hospices and called to request an informational interview, bring a list of questions to help you determine the type and quality of care your loved one will receive there.

Hospice Care Information. The way in which the hospice responds to the initial inquiry will be important. If they don’t make the patient and family feel nurtured and listened to from the very first call for help, look elsewhere.  Don’t feel guilty about beginning your search as early as possible, so you don’t make a decision in a crisis. Here are some questions to ask a hospice:

  • Does the medical director make home visits to address complex symptoms?
  • How does the hospice respond to patient crises after hours?
  • Does the hospice provide all of the levels of care required by the Medicare hospice benefit?
  • Is the facility accredited by one of the national organizations that survey hospices on their quality?
  • Is the staff individually certified as experts in their field by their recognized professional bodies?
  • Do they have a volunteer program and what does it include?

Reference: AARP (June 27, 2019) “How to Find a Quality Hospice”

 

Predatory Marriage: What Can Be Done?

Predatory Marriage and What Can Be Done about It?

“A bad marriage is worse than no marriage at all.” Neil Clark Warren

“A sociopath, on the other hand, has the same regard for financial obligations as he does to personal ones: no remorse, no conscience. Get what you want now, and damn the consequences later.”  Mary Jo Buttafuoco, Getting It Through My Thick Skull: Why I Stayed, What I Learned, and What Millions of People Involved with Sociopaths Need to Know

Here’s a recent case that best illustrates a predatory marriage: a 47-year-old caregiver is riding in a car to the funeral home with the sons of the man she has been taking care of, until he died at age 100. She announces that she and the man were married in secret a year ago. This is another kind of elder financial abuse, says the New York Law Journal in the article “Predatory Marriages and the Elderly: A Legislative Solution” and is increasing in number.

This is not an easy case to deal with, because of a defect in the law. In New York, there is a “right of election” statute that permits a surviving spouse to claim a share in the estate of a deceased spouse, even if he or she was left nothing, as long as they were married on the date of the decedent’s death. Originally meant to shield a surviving spouse from being left nothing, this law is now being used by unscrupulous people to take financial advantage of the elderly.

Dishonest individuals marry mentally incapacitated seniors and then claim their right of election share.

These sham marriages can still result in the person receiving a share of the estate because there’s a flaw in this law. The elective share can only be barred, if there was a judgment declaring that the marriage was annulled in effect at the time of death of the spouse. If the predatory marriage is detected before death and a court order voids the marriage, only then can the elective share be denied. If the judgment of nullification is made after death, the surviving spouse can make a claim.

Like most scams, the person pursuing the predatory marriage will work hard to ensure that no one learns about the marriage, until after the person dies.

In contrast, there is a Mental Hygiene Law in New York State that authorizes the court to revoke any previously executed contract, if the court finds that the contract was made while the person was incapacitated. Marriage is treated as a contract under Mental Hygiene Law and a judgment declaring a marriage void can be issued even after death.

In the case of the 47-year-old woman who hoodwinked the elderly man, the family fought back in court and her claim was denied. Based on the evidence, the court found that she knew the man was mentally incapacitated and entered into the marriage to obtain monetary benefits.

A bill has been introduced in the New York Assembly and Senate that would amend the law to allow the courts to declare a judgment of annulment before or after the death of the spouse, thereby voiding the marriage and disqualifying the surviving spouse from claiming the elective share.

The best prevention of elder financial abuse is to have the family involved in preparing the needed legal documents, before a predator can act. That includes power of attorney for financial matters, a will, and trusts to safeguard assets. Talk with an estate planning attorney today to learn how to protect your family against predatory marriages or asset protection generally. 

Reference: New York Law Journal (May 16, 2019) “Predatory Marriages and the Elderly: A Legislative Solution”