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’s a Living Will?

Living wills can be used to detail the type of healthcare you do or don’t want to receive in end-of-life situations or if you become permanently incapacitated or unconscious. A living will tells your healthcare providers and your family what type of care you prefer in these situations, explains Yahoo Finance’s recent article entitled “How to Make a Living Will.” These instructions may address topics, such as resuscitation, life support and pain management. If you don’t want to be on life support in a vegetative state, you can state that in your living will.

A living will can be part of an advance healthcare directive that also includes a healthcare power of attorney. This lets your chosen healthcare proxy make medical decisions on your behalf, when you’re unable. A living will typically only applies to situations where you’re close to death or you’re permanently incapacitated; an advance directive can cover temporary incapacitation.

Ask an experienced estate planning attorney or elder care lawyer about the technical aspects of how to make a living will. You should consider what to include. Every state is different, so your attorney will help you with the specifics. However,  you’ll generally need to leave instructions on the following:

  • Life-prolonging care, like blood transfusions, resuscitation, or use of a respirator;
  • Intravenous feeding if you are incapacitated and cannot feed yourself; and
  • Palliative care can be used to manage pain, if you decide to stop other treatments.

You will want to be as thorough and specific as possible with your wishes, so there is no confusion or stress for your family when or if the day arrives. You next want to communicate these wishes to your loved ones. You should also give copies of your living will to your doctor. If you’re drafting a living will as part of an advance healthcare directive, be certain that you get a copy to your healthcare proxy.

Review your living well regularly to make sure it’s still accurate because you may change your mind about the type of care you’d like to receive.

Ask your attorney to help you draft a living will along with a healthcare power of attorney, so all of the bases are covered as far as healthcare decision-making. When choosing a healthcare proxy, select a person on whom you can rely, to execute your wishes.  A living will can be an important component of an estate plan and preparing your family for your death.

Reference: Yahoo Finance (Feb. 18, 2021) “How to Make a Living Will”

 

Get Estate Plan in Order, If Spouse Is Dying from a Terminal Illness

Thousands of people are still dying from COVID-19 complications every day, and others are dealing with life-threatening illnesses like cancer, heart attack and stroke. If your spouse is ill, the pain is intensified by the anticipated loss of your life partner.

Wealth Advisor’s recent article entitled “Your Spouse Is Dying: 5 Ways To Get Your Estate In Order Now,” says that it’s frequently the attending physician who suggests that your spouse get his affairs in order.

Your spouse’s current prognosis and whether he or she’s at home or in a hospital will determine whether updates can be made to your estate plan. If it has been some time since the two of you last updated your estate plan, you should review the planning with your elder law attorney or estate planning attorney to be certain that you understand it and to see if there are any changes that can and should be made. There are five issues on which to focus your attention:

A Fiduciary Review. See who’s named in your estate planning documents to serve as executor and trustee of your spouse’s estate. They will have important roles after your spouse dies. Be sure you are comfortable with the selected fiduciaries, and they’re still a good fit. If your spouse has been sick, you’ve likely reviewed his or her health care proxy and power of attorney. If not, see who’s named in those documents as well.

An Asset Analysis. Determine the effect on your assets when your partner dies. Get an updated list of all your assets and see if there are assets that are held jointly which will automatically pass to you on your spouse’s death or if there are assets in your spouse’s name alone with no transfer on death beneficiary provided. See if any assets have been transferred to a trust. These answers will determine how easily you can access the assets after your spouse’s passing.

A Trust Assessment. Any assets that are currently in a trust or will pass into a trust at death will be controlled by the trust document. See who the beneficiaries are, how distributions are made and who will control the assets.

Probate Prep. If there’s property solely in your spouse’s name with no transfer on death beneficiary, those assets will pass according to his or her will. Review the will to make sure you understand it and whether probate will be needed to settle the estate.

Beneficiary Designation Check. Make certain that beneficiaries of your retirement accounts and life insurance policies are current.

If changes need to be made, an experienced elder law attorney or estate planning attorney can counsel you on how to best do this.

Reference: Wealth Advisor (Jan. 26, 2021) “Your Spouse Is Dying: 5 Ways To Get Your Estate In Order Now”

 

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”

 

States with Most Affordable Long-Term Care?

Seven in 10 people 65 and older will require some type of long-term care during their lifetime. This expense will vary based on the patient’s required level of care, care setting and geographic location, says Think Advisor’s recent article entitled “15 Cheapest States for Long-Term Care: 2020.”

A recent study by Genworth found that the cost for facility and in-home care services increased on average from 1.9% to 3.8% per year from 2004 to 2020. That amounts to $797 annually for home care and as much as $2,542 annually for a private room in a nursing home.

At the current rate, some care costs are more than the 1.8% U.S. inflation rate, Genworth said.

These findings were taken from 14,326 surveys completed this summer by long-term care providers at nursing homes, assisted living facilities, adult day health facilities and home care providers. The survey encompassed 435 regions based on the 384 U.S. Metropolitan Statistical Areas, as defined by the U.S. Office of Management and Budget.

In a follow-up study, Genworth also found that these factors are contributing to rate increases for long-term care:

  • Labor shortages
  • Personal protective equipment (PPE) costs
  • Regulatory changes, such as updated CDC guidelines
  • Employee recruitment and retention issues
  • Wages demands; and
  • Supply and demand.

Here are the 15 cheapest states for long-term care, according to Genworth with their average annual cost:

15. Utah: $59,704

14. Kansas: $57,766

13. Iowa: $57,735

12. Kentucky: $57,540

11. South Carolina: $57,413

10. Tennessee: $56,664

9. North Carolina: $56,512

8. Georgia: $53,708

7. Mississippi: $52,461

6. Arkansas: $50,835

5. Oklahoma: $50,641

4. Texas: $48,987

3. Missouri: $48,753

2. Alabama: $48,240

1. Louisiana: $44,811

Speak with a qualified estate planning attorney to discuss your options for long term care.

Reference: Think Advisor (Dec. 14, 2020) “15 Cheapest States for Long-Term Care: 2020”

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”

 

Does Sleep Help with Alzheimer’s?

The brain is the center of the nervous system and controls thought, memory, emotion, touch, motor skills, vision, respiration and every process that regulates your body. As we age, it becomes increasingly important to care for the brain — especially to prevent conditions, like Alzheimer’s and other neurodegenerative diseases.

Considerable’s recent article entitled “Deep sleep may clear the brain of Alzheimer’s toxins” explains previous studies noted that people who sleep poorly are more prone to developing Alzheimer’s. However, scientists were never clear why this was so. A 2013 study performed on mice revealed that while they slept, toxins like beta amyloid (which may contribute to Alzheimer’s disease) were washed away. Nonetheless, scientists had no answers as to the question of why.

This new study says that during sleep, electrical signals (or slow waves) appear, followed by a pulse of fluid that “washes” the brain. The scientists now found an answer to their question, presuming that this fluid is vital in removing dangerous toxins associated with Alzheimer’s.

The study suggests that people might be able to reduce their risk of Alzheimer’s, by getting high-quality sleep.

To come to this conclusion, the researchers used MRI techniques and related technologies to monitor what was going on in the brains of 11 sleeping people. In particular, they monitored cerebrospinal fluid (CSF), which is vital liquid that flows through the brain and spinal cord. They saw that during sleep, large, slow waves of CSF wash into the brain every 20 seconds. The report said that electrical activity in the neurons provokes each of these waves — the scientists compared all of this to the workings of “a very slow washing machine.”

This groundbreaking finding suggests that people may be able to decrease the risk of Alzheimer’s, by making certain that they get high-quality sleep, says William Jagust, a professor of public health and neuroscience at the University of California, Berkeley, in an interview with NPR.

Thus, quality sleep plays a critical part in brain protection, toxin elimination and neurodegenerative disease prevention.

Previous Alzheimer’s medications have targeted specific toxins that are readily present in diseased brains, such as beta amyloid. However, these drugs all failed once going into clinical trials, perhaps because they were only targeting one part of the issue.

The current study opens a new pathway for treatment that would concentrate on increasing the amount of CSF in the brain all together, instead of targeting specific toxins. That’s according to Maiken Nedergaard, a neuroscientist at the University of Rochester, who led the 2013 study on mice, told WIRED.

Speak to an experienced elder law attorney if you have questions.

Reference: Considerable (Sep. 29, 2020) “Deep sleep may clear the brain of Alzheimer’s toxins”

 

When Do We Need an Elder Law Attorney?

Kiplinger’s article “When Elder Care Requires Legal Advice” explains that this is when a lot of panicked calls are made to elder law attorneys. These attorneys specialize in planning for the legal complications that can arise in old age. However, seldom do people think to consult one preemptively to avoid making that panicked phone call in the first place.

Elder care lawyers work in the best interests of the older person, although how that is accomplished may differ. If the senior is competent and contacts the attorney it can be fairly straightforward. However, if an adult family member or friend is an agent or has power of attorney for an elderly person—and asks for help, the attorney is representing the agent. In any event, anyone who has power of attorney has a fiduciary responsibility to do what is best for the elderly person granting them that authority.

If a power of attorney isn’t in place and the elderly parent is incapable of giving it, the family is required to go to court to have someone appointed as a guardian which can be a time-consuming option. If a parent is cognitively capable and doesn’t want help there’s nothing an attorney can do about it.

Although state laws vary, elder law primarily concerns these topics:

  • The client’s wishes and health
  • Family dynamics; and
  • The client’s financial assets and income.

An elder care attorney will also make sure that all important documents are in place and up-to-date according to state laws. This may include a will, a trust, a power of attorney and an advance directive that includes a health care proxy.

Elder law attorneys also help moderate tough decisions, like when family members can’t agree about how a loved one wanted to be buried.  In addition, elder care lawyers understand the complex laws for Medicaid and VA benefits. An elder care lawyer can speak to many other issues ranging from long-term care insurance to capital gains taxes.

A key when meeting with an elder law attorney is that you feel comfortable, that you’re not rushed and that your questions are answered.

Reference: Kiplinger (Sep. 15, 2020) “When Elder Care Requires Legal Advice”

 

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”