What Is a Guardianship?

We would like to think that all of our very responsible parents and relatives have their legal documents in order. However, that is not always the case. Florida Today’s recent article entitled “One Senior Place: What is guardianship and should I seek it?” explains that we need to have a serious discussion with our loved ones and determine if, in fact, “their affairs are in order.” If not, a guardianship may be in their futures.  That is because a guardianship is really a last step.

Guardianship is a legal process that is used to protect a senior who is no longer able to care for his or herself due to incapacity or disability. A court will appoint a legal guardian to care for a senior, who’s called a ward. A legal guardian has the legal authority to make decisions for the ward and represent his or her personal and financial interests. A court-appointed guardian can also be authorized to make healthcare decisions. In a guardianship, the senior relinquishes all rights to self-determination, so you can see how this is the choice of last resort.  If a suitable guardian isn’t found, the court can appoint a publicly financed agency that serves this role.

A doctor will examine a senior and determine if he or she is incompetent to make his or her own decisions. The judge will review the senior’s medical reports and listen to testimony to determine the extent of the alleged incapacity and whether the person seeking guardianship is qualified and responsible.

A guardian can be any competent adult, such as the ward’s spouse, another family member, a friend, or a neighbor. There are even professional guardians. The guardian will usually consider the known wishes of the person under guardianship.

Guardianship can be very costly and can involve a profound loss of freedom and dignity. As a result, speaking with an experienced elder law attorney is essential.

However, there are things that any competent adult can do to decrease the chances of ever needing guardianship. This includes:

  • Drafting a power of attorney for finances; and
  • Drafting an advance healthcare directive, which names a surrogate decision maker for your healthcare decisions, including the right to refuse or terminate life-sustaining medical care based on your wishes.

Moreover, talk about your wishes and all your estate planning documents with your family. That way they’ll know how to put your plan into action, if required in the future. Contact an experienced estate planning attorney or an elder law attorney to assist you.

Reference: Florida Today (March 23, 2021) “One Senior Place: What is guardianship and should I seek it?”

 

What Is a Conservatorship?

A conservator is appointed by a judge. This person handles the estate of an incapacitated adult, as well as their finances, their basic affairs and everyday care. Administrative matters such as Medicare, insurance, pensions, and medical coverage are all also managed by the conservator. The conservator must keep meticulous records that are subject to review by the judge.

The Advocate’s recent article entitled “Alzheimer’s Q&A: What is adult guardianship?” explains that a conservatorship typically lasts as long as the individual lives. The conservator may change because of death, relocation, or an inability to manage the conservator duties and responsibilities. A judge also has the power to replace the conservator, if he or she is repeatedly making poor decisions or neglecting required responsibilities.

A conservator can be wise in some situations because it lets family members know that someone is making the decisions. It also provides clear legal authority to deal with third parties. There is also a process in which a judge will approve any major decisions. However, appointing a conservator can be expensive. An experienced estate planning attorney or elder law attorney must complete court paperwork and attend court hearings. A conservatorship can also be time-consuming due to the required ongoing paperwork.

A big question is when it is appropriate to seek conservatorship. If the individual has become mentally or physically incapable of making important decisions for himself or herself, then it would be smart to have a court-appointed guardian. Moreover, if the person does not already have legal documents in place, like a living will or power of attorney, then the conservatorship would benefit in covering decisions about personal and financial matters.

Even if the individual has a power of attorney for both health care and finances, he or she might need a conservator to make decisions about his or her personal life. This can include topics, such as living arrangements and who is allowed to visit. It is not always easy to determine if an individual can make decisions, but a judge understands that a conservator is viable for those with advanced Alzheimer’s or other forms of dementia.

Families that want to set up a conservatorship need to file formal legal papers and participate in a court hearing before a judge. Evidence of the physical and mental condition of the individual requiring conservatorship must be clearly presented. The person who is the subject of the conservatorship has the opportunity to contest it. Ask an experienced estate planning or elder law attorney who specializes in conservatorships about your specific situation.

Reference: The Advocate (Jan. 25, 2021) “Alzheimer’s Q&A: What is adult guardianship?”

 

The Difference between Power of Attorney and Guardianship for Elderly Parents

The primary difference between guardianship and power of attorney is in the level of decision-making power, although there are many intricacies specific to each appointment, explains Presswire’s recent article entitled “Power of Attorney and Guardianship of an Elderly Parent.”

The interactions with adult protective services, the probate court, elder law attorneys and healthcare providers can create a huge task for an agent under a power of attorney or court-appointed guardian. Children acting as agents or guardians are surprised about the degree of interference by family members who disagree with decisions.

Doctors and healthcare providers don’t always recognize the decision-making power of an agent or guardian. Guardians or agents may find themselves fighting the healthcare system because of the difference between legal capacity and medical or clinical capacity.

A family caregiver accepts a legal appointment to provide or oversee care. An agent under power of attorney isn’t appointed to do what he or she wishes. The agent must fulfill the wishes of the principal. In addition, court-appointed guardians are required to deliver regular reports to the court detailing the activities they have completed for elderly parents. Both roles must work in the best interest of the parent.

Some popular misperceptions about power of attorney and guardianship of a parent include:

  • An agent under power of attorney can make decisions that go against the wishes of the principal
  • An agent can’t be removed or fired by the principal for abuse
  • Adult protective services assumes control of family matters and gives power to the government; and
  • Guardians have a responsibility to save money for care, so family members can receive an inheritance.

Those who have a financial interest in inheritance can be upset when an agent under a power of attorney or a court-appointed guardian is appointed. Agents and guardians must make sure of the proper care for an elderly parent. A potential inheritance may be totally spent over time on care.

In truth, the objective isn’t to conserve money for family inheritances, if saving money means that a parent’s care will be in jeopardy.

Adult protective services workers will also look into cases to make certain that vulnerable elderly persons are protected—including being protected from irresponsible family members. In addition, a family member serving as an agent or family court-appointed guardian can be removed, if actions are harmful.

Agents under a medical power of attorney and court-appointed guardians have a duty to go beyond normal efforts in caring for an elderly parent or adult. They must understand the aspects of the health conditions and daily needs of the parent, as well as learning advocacy and other skills to ensure that the care provided is appropriate.

Ask an experienced elder law attorney about your family’s situation and your need for power of attorney documents with a provision for guardianship.

Reference: Presswire (Jan. 14, 2021) “Power of Attorney and Guardianship of an Elderly Parent”

 

What are Common Diseases Facing Seniors Hospitalized for COVID-19?

Seniors with several chronic conditions are particularly susceptible to illness and a hospital stay because exposure to the coronavirus, according to newly updated data from the federal Centers for Medicare & Medicaid Services (CMS).

Money Talks News’ recent article entitled “Seniors With These 7 Diseases Are Most Often Hospitalized for COVID-19” reports that CMS says that nearly 1.2 million Medicare beneficiaries were diagnosed with COVID-19 from January until the middle of September, and of those, more than 332,000 were hospitalized with a COVID-19 diagnosis during that time.

CMS says that as of October 9, it noted that the data “will continue to change as CMS processes additional claims and encounters for the reporting period.” The numbers show that seven chronic conditions were most common among the Medicare beneficiaries who had been hospitalized:

  • Hypertension: 80%
  • Hyperlipidemia: 62%
  • Chronic kidney disease: 51%
  • Diabetes: 50%
  • Anemia: 48%
  • Ischemic heart disease: 46%
  • Rheumatoid arthritis/osteoarthritis: 46%

Of those who were hospitalized, 21% died and 32% were discharged. The rest were transferred to skilled nursing facilities (22%), home health care (14%), hospice (5%), or other health care settings. Roughly half of the hospital stays lasted for fewer than eight days, and 12% of the stays were at least 21 days.

The research shows that the coronavirus is impacting people of color, older adults and the poor more frequently. This disparity also appears in the Medicare data. CMS says COVID-19 hospitalization rates are extremely high for:

  • Black beneficiaries (1,263 hospitalizations per 100,000 beneficiaries);
  • Hispanic beneficiaries (967 hospitalizations per 100,000 beneficiaries);
  • Beneficiaries who are age 85 or older (1,003 hospitalizations per 100,000 beneficiaries);
  • Beneficiaries who are age 75 to 84 (604 hospitalizations per 100,000 beneficiaries); and
  • Beneficiaries enrolled in both Medicare and Medicaid, the government insurance program for people with low incomes (1,374 hospitalizations per 100,000 beneficiaries).

In contrast, the overall rate for all Medicare beneficiaries was 517 hospitalizations per 100,000 people. It might be wise to contact an estate planning attorney beforehand to make sure you have the correct documents for your loved ones.

Reference: Money Talks News (Nov. 19, 2020) “Seniors With These 7 Diseases Are Most Often Hospitalized for COVID-19”

 

What Do I Need besides a Durable Power of Attorney for Healthcare?

A medical power of attorney (POA) is a durable power of attorney for healthcare. This document lets a trusted friend or family member serve as your agent to make important and necessary healthcare decisions if you become incapacitated or unable to communicate or participate in care. It is an important document. Speak with an experienced estate planning attorney to prepare one for you if you do not have one.

Forbes’s recent article entitled “For Medicare, Having A Power Of Attorney Is Not Enough” explains that with COVID-19, this is very important. The risk for severe illness from this disease increases with age and hospitals aren’t permitting visitors. This lack of access can create some major challenges in managing a family, dealing with critical business issues and paying bills.

Here’s one more: powers of attorney don’t stand alone when it comes to dealing with Medicare issues. Medicare requires a beneficiary’s written permission to use or provide personal medical information for any purpose not defined in the privacy notice contained in the Medicare & You handbook. A competent person can complete the form, call the “1-800-MEDICARE Authorization to Disclose Personal Health Information.” When needed, the representative is then authorized to talk with Medicare, research and choose Medicare coverage, handle claims and file an appeal.

Make sure that you’ve authorized Medicare to release information to family or an agent. You should also see if the authorization applies for a specified period of time or indefinitely. You must mail the completed form to Medicare. You can revoke this authorization at any time. For those who are no longer able to give consent, their personal representative can complete the form and attach a duly executed power of attorney.

There’s another authorization to address. It concerns individual Medicare plans – Medicare Advantage, Part D prescription drug, or Medicare supplement. Every plan has an authorization form that gives the authority to speak to plan representatives about claims or coverage, update contact information and more, depending on the individual plan.

To begin this process, check the plan’s member information or talk to a customer service representative.

You never know what’s in the future, so take the time now to prepare. You should take these three important steps.

  1. Establish or update your financial and medical powers of attorney
  2. Identify and name an authorized Medicare representative; and
  3. Contact your Medicare plan(s) and fill out the authorization forms.

Reference: Forbes (August 4, 2020) “For Medicare, Having A Power Of Attorney Is Not Enough”

 

What Can I Do to Combat Dementia?

If you’re just trying to keep your mind sharp or you’re attempting to ward off dementia, there are some things you can do to help your brain stay healthy, says the Orange County Register’s recent article entitled “Here are 3 surprising things you can do to fight dementia.”

Here are some things to keep your brain busy and fight dementia:

Study French. Comment allez-vous? OK, perhaps you haven’t attempted to learn a new language since high school. However, did you know it can help fight dementia? Researchers have studied patients with dementia and found that speaking a second language puts these patients at an advantage, regardless of their level of education. In one study, the bilingual patients in the group developed dementia an average of four and a half years after those who spoke just one language.

Get Some Exercise. Regular exercise is recommended to keep your body healthy throughout your life— and it may also help keep your mind sharp. Exercise may keep your brain healthy, by supporting vascular health and by helping release chemicals to protect your brain. You can visit a gym, go for a run, or play sports with friends to get in the exercise. There is no wrong way to be physically active. To get the benefit, shoot for 150 minutes of moderate activity a week or 75 minutes of vigorous exercise.

Make Friends. Partying with your best buds isn’t just for college students. The young at heart can and should also have an active social life. This also helps you avoid loneliness and provides you with something to do. An active social life can also be a tool in the fight against dementia. Having a large social network of friends and family has been linked to a lower risk of dementia. In fact, seniors without any social ties are more than two times as likely to develop dementia as those with ties to at least five other people. In addition, skipping a social engagement earlier in life is connected with a higher risk for dementia. Therefore, be certain that you reach out and make some friends at every stage of life.  “Strong social ties can help keep your mind sharp, and you can build these relationships no matter your circumstances,” said Amy Santo, administrator at Smith Ranch Skilled Nursing and Rehabilitation Center. “People who live in care facilities often benefit from social interactions with their caregivers and by participating in group activities with other residents.”

A person is diagnosed with dementia about every minute in the U.S. There are things you can do to help your brain stay healthy as you age. These efforts can help to delay or stave off dementia.

It doesn’t hurt to try them, and you may find you enjoy the work while you’re at it.

 

Reference: Orange County Register (June 29, 2020) “Here are 3 surprising things you can do to fight dementia”

 

Should Nursing Homes Plan for Future Pandemics?

Roughly 6,000 nursing home residents have died during the pandemic in New York State.

The coronavirus pandemic has exposed vulnerabilities for one of the country’s most high-risk populations: our senior citizens.

Spectrum News reports in the article “Nursing Homes Could Be Required to Have Pandemic Plan” reports that a proposed bill in that state would require nursing homes to have plans for future pandemics, make those plans readily available on websites, provide regular updates on the status of patients and establish protection plans for staff and residents.

In addition, communication via videoconferencing must be made available for residents.

The bill would also mandate that a pandemic plan preserve a resident’s place in a nursing home after hospitalization is through. It would also include provisions for the facilities to have a minimum two-month supply of personal protective equipment (PPE).

The New York State Department of Health will be required to audit facilities annually for compliance.

“The nature of COVID19 exposed a tragic vulnerability among one of our most high-risk populations: our elderly,” said Assemblyman Joe Lentol, a Brooklyn Democrat. “The rapid spread of the virus in nursing homes exposed a fatal flaw in pandemic planning and it is clear that more has to be done to protect nursing home residents and its healthcare workers.”

New York’s response to nursing homes during the crisis has come under some scrutiny. Part of that has been a March 25 order that required the facilities to take in COVID-positive patients.

New York Governor Andrew Cuomo has partially reversed that directive, by banning hospitals from discharging people to nursing homes who are still positive for the virus.

Cuomo has also placed some of the blame on the CDC guidelines for permitting nursing homes to take COVID residents. However, he didn’t raise the issue in a recent meeting with President Trump.

Twice weekly testing of nursing home and adult care facility staff is now underway. The testing capacity and supply has increased in New York over the past month.

The bill must still be considered by Governor Cuomo for approval.

If you have questions about a loved one who is being transferred to a nursing home, make sure you speak with your estate planning attorney.

Reference: Spectrum News (May 28, 2020) “Nursing Homes Could Be Required to Have Pandemic Plan”

What Should I know about Financial Powers of Attorney?

A financial power of attorney is a document allowing an “attorney-in-fact” or “agent” to act on the principal’s behalf and answers the question of what you should know about Financial Powers of Attorney. It  alsousually allows the agent to pay the principal’s bills, access her accounts, pay her taxes and buy and sell investments. This person, in effect, assumes the responsibilities of the principal and can act for the principal in all areas detailed in the document.

Kiplinger’s recent article from April entitled “What Are the Duties for Financial Powers of Attorney?” acknowledges that these responsibilities may sound daunting, and it’s only natural to feel a little overwhelmed initially. Here are some facts that will help you understand what you need to do.

Read and don’t panic. Review the power of attorney document and know the extent of what the principal has given you power to handle in their stead.

Understand the scope. Make a list of the principal’s assets and liabilities. If the individual for whom you’re caring is organized, then that will be simple. Otherwise, you will need to find these items:

  • Brokerage and bank accounts
  • Retirement accounts
  • Mortgage papers
  • Tax bills
  • Utility, phone, cable, and internet bills
  • Insurance premium invoices

Take a look at the principal’s spending patterns to see any recurring expenses. Review their mail for a month to help you to determine where the money comes and goes. If your principal is over age 72 and has granted you the power to manage her retirement plan, don’t forget to make any required minimum distributions (RMDs). If your principal manages her finances online, you’ll need to contact their financial institutions and establish that you have power of attorney, so that you can access these accounts.

Guard the principal’s assets. Make certain that her home is secure. You might make a video inventory of the residence. If it looks like your principal will be incapacitated for a long time, you might stop the phone and newspaper. Watch out for family members taking property and saying that it had been promised to them (or that it belonged to them all along).

Pay bills. Be sure to monitor your principal’s bills and credit card statements for potential fraud. You might temporarily suspend credit cards that you won’t be using on the principal’s behalf. Remember that they may have monthly bills paid automatically by credit card.

Pay taxes. Many powers of attorney give the agent the power to pay the principal’s taxes. If so, you’ll be responsible for filing and paying taxes during the principal’s lifetime. If the principal dies, the executor of the principal’s will is responsible and will prepare the final taxes.

Ask about estate planning. See if there is an estate plan and ask a qualified estate planning attorney for help. If the principal resides in a nursing home paid by Medicaid, talk to an elder law attorney as soon as possible to save the principal’s estate at least some of the costs of their care.

Keep records. Track your expenditures made on your principal’s behalf. This will help you demonstrate that you have upheld your duties and acted in the principal’s best interests, as well as for reimbursement for expenses.

Always act in the principal’s best interest. If you don’t precisely know the principal’s expectations, then always act with their best interests in mind. Contact the principal’s estate planning attorney who prepared the power of attorney for guidance.

Reference: Kiplinger (April 22, 2020) “What Are the Duties for Financial Powers of Attorney?”

 

Helping Your Elderly Parents during the Pandemic

Considerable’s recent article entitled “4 things you can do for your aging parents during the coronavirus pandemic” reports that 8 out of 10 deaths reported in the U.S. related to COVID-19 have been in adults 65 years old and older, according to the Centers for Disease Control and Prevention (CDC). If your parents are in one of the vulnerable categories, here are four things you can do right now to help them.

  1. Shop or help them place orders online. With many cities experiencing a shopping frenzy in response to the coronavirus, personal care and household items have quickly disappeared from stores. You can help your parents by allowing them to stay home and going to the store for them and dropping off groceries on their door. You can also place online orders that can be delivered to their home.
  2. Contact them regularly. The CDC says the coronavirus is believed to spread primarily from person-to-person contact, particularly between people who are closer than six feet from each other. Therefore, you have likely already been separating yourself from your family members, including your parents. To avoid possibly exposing your parents, use Skype, FaceTime, or call them on the phone. Stay in close communication to keep their spirits up and check on how they’re feeling. This can help you to verify their mental and physical health, as the days of social distancing add up. You can set up a schedule with specific times you’ll call, so they have something to look forward to throughout the day.
  3. Watch for scams. We’re already hearing about the con artists coming out of the woodwork to prey on the elderly—and all of us in this medical and financial crisis. Speak to your parents about these scams, so they can protect themselves. The Federal Trade Commission has issued guidelines for avoiding scams, including the following:
  • Hang up on robocalls and don’t press any numbers.
  • Verify your sellers because many online sellers may say they have in-demand products in stock, when they actually don’t.
  • Don’t click on links from sources you don’t know.
  • Research before making donations, and if asked for donations by cash, gift card, or wiring money, pass!
  1. Keep ‘em busy. Seniors have unique challenges when they stay at home. The inactivity that can be linked to being confined in the home can cause declines in physical health and in physical abilities. The elderly are also at greater risk of developing depression in social isolation, and their elevated risk for bad outcomes from this virus can cause higher levels of anxiety and lead to sleep difficulties and other health issues. Encourage your parents to read, play a board game, do a puzzle, or take a walk, provided that they’re keeping distance from others. Many religious groups have also transitioned their services online, and there are plenty of movies and TV shows on-demand for home viewing.

Most significantly, make certain that your parents are taking the pandemic seriously and emphasize the importance of social distancing.

Remember, too this would be a great time to review your parent’s estate planning to make sure that everything is in place. Reach out to the estate planning attorney who prepared the documents and have the documents reviewed.

Considerable (April 8, 2020) “4 things you can do for your aging parents during the coronavirus pandemic”