CARE PLAN MEETINGS

by BlogElder Law

CARE PLAN MEETINGS

Whether your loved one is staying at a skilled care facility, also known as a nursing home, for a short term rehabilitation stay or as a permanent resident, you should be asked to participate in a “care plan conference,” or a “quarterly care conference.” Unfortunately, family members attend with little understanding of what a care plan should provide or what the goals of an effective care plan conference should be.

What Is a Care Plan?

A care plan is a road map of sorts, providing goals and directives for achieving those goals for residents, families, and facility staff. A care plan is required by the 1987 Nursing Home Reform Law at any skilled nursing facility (SNF) that accepts Medicare or Medicaid.

The facility’s care plan team must complete an assessment within the first 14 days of a resident’s stay or within the first seven days if the stay is paid for by Medicare. The care plan team uses a standard document called

a Minimum Data Set (MDS). Within seven days of the assessment, the team must complete a care plan and schedule a conference.

Thereafter, a care plan meeting should be scheduled at least once every three months, or sooner if the resident’s condition changes significantly, to discuss progress and changes to the care plan. A family member can also request a meeting at any time.

A care plan should be written in language that everyone can clearly understand and should reflect the specific needs and concerns of the individual resident. If you don’t know exactly what the plan means, ask for

clarification. You should read a care plan regularly and carefully, make sure it is revised whenever necessary, and insist that it is followed diligently.

The resident of the facility should attend the care plan conference whenever feasible, and participation by you or another family member or trusted friend is a good idea. Also, you may bring in an outside professional, such as a care manager or a social worker, to help you work out the best plan. It is important that all of the information from the care plan team is heard and understood by the resident, if possible.

It is also essential that the resident communicate his needs and preferences clearly, and that the team really listens and understands these needs. Residents and their representatives should receive a written communication with the date and time of the care plan meeting. You may call to reschedule the meeting if necessary. You should ask how much meeting time is being allotted and feel free to request additional time, if needed.

Come Prepared

Write a list of questions, concerns, and observations and bring it to the meeting.

A Few Suggested Questions

  • What changes in the resident’s health, functional status, or behaviors have occurred since the last care plan conference? To what are these changes attributed?
  • How frequently is the resident participating in activities or social events? Could his special interests be integrated into the facility’s activities calendar? Obtain a copy of the calendar so you can help your loved one plan to attend the activities.
  • What percentage of the meals and fluids offered is the resident consuming? What is their diet—general, low salt, mechanical soft, etc? What is the current weight? Have there been fluctuations in weight? Are there particular foods/snacks he enjoys, that he would like more of?
  • What is the status of any special therapies that are being provided (physical, occupational, speech, etc.)? If no formal therapies are being offered, ask that your loved one be in their restorative (or maintenance) program.
  • When was the last time the resident saw his physician? A physician must examine residents at least once every 30 days for the first 90 days after admission and at least once every 60 days thereafter.
  • Obtain a list of all the health care providers, including physicians, physician assistants, advance practice nurses, wound care nurses, etc., involved in caring for your loved one. What do clinical notes from recent visits indicate? Obtain a copy of the current medication list.
  • What is your loved one’s bathing / shower schedule? By law, your loved one is to receive one a week. Most communities offer two.
  • Does your loved one need any special equipment, i.e. weighted silverware, plate guard, mattress pad, positioning cushion, etc.?
  • Podiatry visits. Ask that your loved one be added to the list for the podiatrist. Medicare will pay for podiatry visits as medically needed.
  • Dental care. Does your loved one need to be seen by the dentist? If yes, ask about the provider and when he/ she is coming again. Note, Medicare and Medicaid do not pay for dental visits.
  • Have there been any changes in the facility’s administration or nursing staff? Are there new staff members responsible for the care of your loved one that you should meet?
  • Are there any items the resident needs, such as new clothing, personal items, reading material, or stationery? Are eyeglasses and hearing aids in good repair?
  • What changes to the current care plan would the staff recommend and why?

The care plan meeting is your opportunity to ensure that all of your loved one’s medical and non-medical needs have been identified and are being addressed in satisfactory ways. Although you may not resolve every concern during the meeting, you should walk away knowing that an agreed-upon strategy is in place.

Don’t accept recommendations unless your loved one or their representative understands and agrees with them. Remember that residents have the right to choose and refuse any form of care or treatment the care plan team offers. The team must identify and present alternatives that will meet the stated goals of the care plan.

When asking questions and communicating your concerns, you should assume that the facility administration and staff are working with your family member’s best interests at heart, because the majority are. You’ll do best by communicating in ways that don’t generate defensiveness, so you can continue having open dialogue in the future.

You should come to the meeting with a full knowledge of the resident’s rights, and you should be prepared to defend and protect those rights when necessary.

Residents and their representatives can feel intimidated or not want to be pushy, but being a “squeaky wheel” is not a bad practice. Just strive to find mutually respectful, positive, and productive ways to deal with the key questions and difficulties that arise.

Two-Way Communication

The care plan meeting is also your opportunity to provide the facility’s staff with important background information that can improve the quality of care that your loved one receives. Skilled care facilities are obligated to provide individualized care, and are, therefore, required to make reasonable adjustments to honor the resident’s needs and preferences.

For example, if an individual used to enjoy a bath after dinner to relax for a good night’s sleep, it is reasonable to expect the staff to use a similar bath schedule. When making specific requests, be prepared to explain how the change or adjustment will be of benefit to the resident and improve their quality of life.

Keep in mind that laws protect residents’ rights to receive quality care. You and your family member should determine what “quality care” means to you, and clearly communicate your expectations to those who are providing the care.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Why Choose An Elder Law Attorney For Estate Planning?

by BlogElder Law

Why Choose An Elder Law Attorney For Estate Planning?

You have decided to take the advice of your friends, family and financial planner and have your estate planning documents prepared. Who should you hire — a traditional estate planner, or, an elder law attorney?

While most elder law attorneys are estate planners, most estate planners are not elder law attorneys. Traditional estate planners focus on the transfer of your property at your death and minimization of estate taxes. While elder law attorneys also plan for transfer of property at your death as well as estate tax minimization, in addition, they attorneys formulate plans that also help protect your assets while you are alive, both from the expense of long term care as well as from financial exploitation in your later years. Also, elder law attorneys craft plans that protect you and your estate if you become incapacitated.

An elder law attorney will discuss and advise you on these lifetime circumstances:

  1. Plan for your long-term care. Unless you are covered under a long-term care insurance policy, the cost of home care, assisted living, and nursing home for you and your spouse will primarily be your financial responsibility. Medicare covers only limited skilled care. Older persons who need care most often need assistance with activities of daily living — eating, bathing, dressing, toileting and transferring (walking), which is considered custodial, not medical. Because it is not medical, neither Medicare nor health insurance covers much or any custodial care. Therefore, you will need to either save for long-term care or purchase long- term care insurance. If you cannot afford long-term care insurance or are uninsurable because of a medical condition, your estate plan should include the flexibility to allow for Medicaid planning to qualify you or your spouse for Medicaid coverage of long-term care. This often takes the form of customized Medicaid planning powers which must be included in your power of attorney for property and trust documents. If your spouse is diagnosed with a chronic illness, it may be prudent to restructure your assets. An elder law attorney will take all of these issues into consideration when crafting your estate planning documents.
  1. Plan to protect assets for your children. Asset protection planning from an elder law perspective takes several different forms. You may have a child with a disability, or with health or mental problems that makes you question their ability to support themselves. An elder law attorney will consider those issues and may advise that you establish a special needs trust for that child which is established only if that child requires public benefits programs at the time of your death. An elder law attorney may recommend a credit-protection trust for a child who is in debt or has spending problems. Finally, if you have sufficient assets to make a substantial gift in the form of an irrevocable gift trust, an elder law attorney will be able to counsel you on a 5-year Medicaid plan to protect assets for your children.
  1. Plan for your potential incapacity. The longer we live, the greater the likelihood that each of us will spend some portion of our life with diminished mental capacity and will need assistance with management of our finances and other important decisions. Planning for decision-making and financial management in the event of incapacity is critical to a good estate plan. An elder law attorney will be able to counsel you as to appropriate surrogate decision-makers and will have referrals to appropriate professionals if you need them.
  1. Plan to protect you, as you age, from possible financial exploitation. The financial exploitation of the elderly is a rapidly growing problem. Dementia and the aging brain make the older elderly especially vulnerable to exploitation by family and neighbors, as well as by scams and con artists. While not foolproof, there are estate planning provisions that may reduce your risk of being victimized. Elder law attorneys build accountability into trusts and powers of attorney to minimize the opportunity that those documents may be used to exploit. Elder law attorneys may include provisions to make it more difficult to revoke or amend documents at a certain age, in order to protect you from undue influence. An elder law attorney may also advise that when you reach a certain age that your documents allow for more assistance and oversight by trustworthy family members or professionals. Minimizing your exposure to financial exploitation is an important concern for elder law attorneys.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Family Caregiving When The Adult Children Are Long Distance

by BlogElder Law

Family Caregiving When The Adult Children Live Long Distance

When families live far away from one another, the holidays may be the only opportunity that long-distance caregivers and family members have to personally observe older relatives. Decline can happen quickly. Family members who haven’t seen their aging loved for a while may be shocked at what they see: a formerly healthy father looking frail, or a mom whose home was once well-kept now in disarray.

For those who have relied on regular telephone conversations and assessment by other closer-living relatives to gauge an older loved one’s well-being, the holiday visit can be revealing. Absence – even for a short period – often allows us to observe a situation through new eyes…and the following changes may indicate the need to take action to ensure your aging relative’s safety and good health.

What to Look for

Weight Fluctuations

One of the most obvious signs of ill health, either physical or mental, is weight loss. The cause could be as serious as cancer, dementia, heart failure or depression. Or, it could be related to a lack of energy to cook for a loved one or just themselves, the inability to get fresh groceries, the waning ability to read the fine print on food labels, or difficulty cleaning utensils and cookware. Certain medications and aging in general can also change the way food tastes. If weight loss is evident, talk to your loved one about your concern and schedule a doctor’s visit to address the issue.

Movement

Pay close attention to the way your loved one moves, and, in particular, how they walk. A reluctance to walk or obvious pain during movement can be a sign of joint or muscle problems or more serious afflictions. If they are unsteady on their feet, they may be at risk of falling. Schedule a doctor’s visit and consider obtaining a personal emergency response system.

Emotional Health

Beware, too, of obvious and subtle changes in your loved one’s emotional well-being. You can’t always gauge someone’s spirits over the telephone, even if you speak daily. Take note for signs of depression, including withdrawal from activities with others, sleep patterns, loss of interest in hobbies, and lack of basic home maintenance or personal hygiene. The latter can be an indicator not only of depression, but also of dementia or other physical ailments including dehydration, a serious condition sometimes overlooked in elders in the winter months. If you notice sudden “odd behavior” with your loved one, be sure to seek medical attention.

Attention must also be paid to surroundings. For instance, your loved one has always been a stickler for neatness or for paying bills promptly. If you discover excess or unsafe clutter and mail that has piled up, a problem may exist. Offer to go through mail and old papers.

Everyday Concerns

Also, keep an eye out for less obvious indications for concern. Scorched cookware, for example, could be a sign that your loved one forgets if the stove is on. An overflowing hamper could mean he or she doesn’t have the strength and/or desire to do laundry. Look out for safety hazards such as steep steps, loose rugs, missing handrails or poor lighting. Check prescriptions and medication bottles for expiration dates, and make note of all prescriptions your loved one takes. Place that information in your personal files, as well as their wallet, in case of an emergency. If your loved one is driving, look for unexplained dents or scratches on the car, and maybe take a short drive with them to see how they handle the road.

Steps to Take

Initial Conversation

First, have a heart-to-heart conversation with your loved one about their present circumstances, concerns, and the measures they’d like taken to make things better. Introduce the idea of a health assessment appointment with their primary health care provider. Would they feel more at ease if a home health aide visited a couple times a week? Maybe they have legal questions and would greatly benefit from an appointment with an elder law attorney. Or, they may need help with housecleaning or bill paying.

Identify Important Information and Resources

While you may want to keep things light during the holiday season, do take this opportunity to collect and update all necessary information now to avoid frustration and confusion in the event of a crisis down the road.

Medical

  • Information on all medical conditions.
  • A list of medications, including the name, dose, and name of the prescriber.
  • Names and phone numbers of all health care providers.
  • Name and phone number of their pharmacy.
  • Name and contact information for local contact (i.e. care manager)
  • Register in the Premise Alert Program with the local police department.

Insurance

  • A list of all insurance policies, the carriers, and the account numbers.

Utilities

  • Company names and phone numbers for all utilities, including electric, phone, cable, water, and Internet.

Financial

  • A list of all assets and debts (include dollar values).
  • Monthly income.
  • Monthly expenses.
  • A statement of net worth.
  • Information on bank accounts, other financial holdings, and credit cards Real Estate.
  • Safety Deposit Box (location, where is the key) Legal
  • Relevant legal documents your loved one has (i.e. wills, advance directives, trusts, powers of attorney, etc).
  • Location of important documents (i.e. birth certificates, deed to home).   Social Security numbers.

Make All Necessary Appointments

Your loved one may need assistance making medical appointments. Finding the right doctor, collecting all relevant information, and assessing medical insurance and other costs can be confusing and frustrating. If your relative is open to having an initial conversation about health concerns, an offer of help from you may go a long way in alleviating some of this stress.

Your older relative may also need to make significant legal arrangements for their property, finances, and health. If they are willing, they may need your help to schedule an appointment with an elder law attorney. This may include drafting of a will or trust, a living will, and powers of attorney. These documents and others may help your elderly relative plan for the future and ensure their continuing health and protection.

This information is not to be considered legal advice. If you have questions about it, please contact us.

 

Legal Planning For Living With A Chronic Medical Condition

by BlogElder Law

Legal Planning For Living With A Chronic Medical Condition

In 1900, most people died younger from communicable diseases and after relatively short illnesses. Today, we are more likely to die older from one or more chronic conditions and after an extended period of illness. The decisions involved with planning for disability associated with chronic conditions can be difficult to make. Recognizing that developing a plan is the goal and that plans can (and should) be revised over time may help you assume a proactive role when it comes to legal matters. A summary of the basics involved in planning are outlined below:

Financial Power of Attorney & Guardianship

A financial power of attorney allows you to designate a person to make your financial decisions and handle your financial affairs if you are unable to do so yourself. This document needs to be put in place early, before you are unable to make decisions.

If you have no agent under a financial power of attorney, a family member may petition the courts to appoint a guardian of your estate to manage your money and property. However, guardianships can be expensive to administer and in many cases having powers of attorney in place can avoid the guardianship process.

Health Care Power of Attorney & Advance Directives

A health care power of attorney allows you to designate a person to make your health care decisions, including residential placement and home care decisions, if you are unable to do so yourself. You may appoint back-up individuals to act if the person you have designated as your primary agent is unable or unwilling to act to make your health care decisions.

Advance Directives such as a Living Will or Physician’s Order for Live Sustaining Treatment (POLST) allow you to communicate in advance your preferences for end of life medical care, such as indicating you do not want to be fed by tube or be resuscitated if your heart stops. Your agents under your health care power of attorney and your medical providers have a duty to honor your wishes expressed in your Advance Directives.

A family member may need to ask the court for the appointment of a guardian to make health and case decisions if there is no health care agent in place for you or if you are cognitively impaired and insisting on making health care decisions for yourself which are inappropriate and dangerous, such as refusing necessary home care.

Estate Planning

Estate planning documents provide for the distribution of your assets at your death, such as a Will. A Trust provides not only for distribution of your assets at your death, but management of your assets while you are alive. If your estate is of a sufficient size to warrant the expense of establishing and administering a Trust,

a Trust can be an effective tool for planning for potential disability as you can name trusted individuals or professionals to step in to manage your Trust in the event of your disability.

Long-Term Care Planning

Chronic conditions are likely to progress and result in the need for some type of long-term care. Long term care means care that is generally limited to assistance with activities of daily living for the person with the condition, such as assistance with bathing, dressing, transportation, meal preparation, etc. As long term care is not medical care, traditional health insurance and Medicare does not cover it. You should consult with your financial planner to determine whether your income and assets are sufficient to cover your expected necessary long term care. If income and assets are insufficient, then you should consult with an elder law attorney in order to plan to protect assets and qualify for Medicaid covered long term care services.

In planning for long term care, especially in making financial projections, it can be helpful to consult with a Care Manager. A Care Manager comprehensively evaluates your physical health and wellness, memory and mental status, functional abilities, informal and formal social support networks, financial resources and living environment and makes recommendations for care based on this assessment together with an understanding of your wishes.

Hire an Elder Law Attorney

Hiring an elder law attorney early in the disease process can save you money and time down the road. An Elder Law Attorney has experience in issues affecting persons with chronic conditions and their families, whether dementia, Parkinson’s or other degenerative conditions. A good elder law attorney understands the medical and practical aspects of planning for chronic disease and disability, the changing array of long-term care resources, and helps clients meet their goals of freedom, control and social involvement. He or she can craft an estate plan to protect your assets while qualifying you for government benefits. The National Elder Law Foundation and National Academy of Elder Law Attorneys can help you locate a qualified, experienced attorney.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Important Information To Know And Keep Current

by BlogElder Law

Important Information To Know And Keep Current

Medical

  • Information on all medical conditions and surgeries in the last five years.
  • A list of medications, including the name, dose, and name of the prescriber.
  • Names, contact information, and patient portal login and passwords for all health care providers (physicians, advanced practice nurses, hospitals, etc.)
  • Name, phone number, and login information and password for pharmacy.
  • Name and contact information for local professionals (i.e., care manager, therapist, etc.)
  • Name, contact information, and the cards for all health insurance and medication plans.

Insurance

  • A list of insurance policies, the carriers, the account / policy numbers, and names of beneficiaries.

Utilities

  • Names, account number, and contact information for all utilities (electric, phone, cable, water, internet, etc.).

Documents

  • Safe Deposit Box (Location? Where is the key? Who has access?)
  • Legal documents (wills, advance directives, trusts, powers of attorney, and all amendments, exhibits, attachments, and schedules, etc.).
  • Location of important documents (i.e., birth certificates, naturalization papers, marriage certificates, death certificates, deed to home, mortgage).
  • Social Security Cards
  • Health insurance cards (Medicare, prescription discount, Medicare, supplemental, etc.)
  • Driver’s license or state ID

Financial

  • A list of all assets and debts (include dollar values).
  • Monthly income.
  • Monthly expenses.
  • A statement of net worth.
  • Information on bank accounts, other financial holdings, and credit cards

This information is not to be considered legal advice. If you have questions about it, please contact us.

Resources

How To Pay For Skilled Care

by BlogElder Law

How To Pay For Skilled Care

One of the things that concerns people most about nursing home care is how to pay for that care. There are basically three ways that you can pay the cost of a nursing home:

  1. Long Term Care Insurance – If you are fortunate enough to have this type of coverage, it may go a long way toward paying the cost of the nursing home. Unfortunately, long term care insurance has only started to become popular in the last couple of years and most people facing a nursing home stay do not have this type of coverage.
  2. Pay with Your Own Funds – This is the method many people choose at first. Quite simply, it means paying for the cost of a nursing home out of your own pocket. Unfortunately, with nursing home bills averaging around $7,000 or more per month, few people can afford a long term stay.
  3. Medicaid and Medicare – These are primarily federally-funded and state-administered programs that pay for the cost of the nursing home if certain eligibility requirements are met.

There is a lot more to be said about long term care insurance and paying with your own funds, but we will concentrate on Medicaid and Medicare for purposes of this blog.

What about Medicare?

There is a great deal of confusion about Medicare and Medicaid. Medicare is the federally-funded health insurance program primarily designed for older individuals (i.e., those over age 65). There is a limited long-term care component to Medicare. In general, if you have had a hospital stay (not observation status) of at least 3 consecutive days, not counting the day of discharge, and then you need to go into a skilled nursing facility within the next 30 days (for rehabilitation or skilled nursing care), then Medicare may pay for a short period of time.

Typically, in that circumstance, Medicare will pay the full cost of the nursing home stay for the first 20 days and may continue to pay the cost of the nursing home stay for the next 80 days, but with a deductible that is over $100 per day. Often times your Medicare supplement insurance policy will pay the cost of that deductible. So in the best case scenario, Medicare may pay up to 100 days.

Even if Medicare does cover the 100 day period, what then? What happens after the 100 days of coverage have been used? At that point, you are back to one of the other alternatives…long term care insurance, paying the bills with your own assets, or Medicaid.

What is Medicaid?

Medicaid is a benefits program that is jointly funded by the federal and state government. The program is administered by each state at the county level. So some aspects of the Medicaid rules are based on federal law and others are based on state law.

One of the primary benefits of Medicaid is that, unlike Medicare which only pays for skilled nursing, the Medicaid program is more flexible and will pay for long term custodial care. This means that Medicaid will pay for an individual’s long term stay in a nursing home. However, unlike Medicare, Medicaid imposes financial requirements where the individual must have limited resources in order to qualify for benefits.

Do All Illinois Nursing Homes Accept Medicaid?

No, nursing homes in Illinois are not required to accept Medicaid, and so some nursing homes are private pay only. You will need to question this up front. Also, some nursing homes that do accept Medicaid will still require that there be sufficient funds to privately pay a certain number of months before they will allow a person admission to their facility.

Some nursing homes that accept Medicaid have a “distinct part” system. This means that certain beds are private pay beds and certain beds are Medicaid beds. A resident may start in a private pay bed and then move to a Medicaid bed once the private funds are depleted. If this is the case, the family advocate will need to watch and make sure the move is done in a timely manner because Medicaid will not pay the nursing home for a private pay bed, and if the private funds are depleted, there will continue to be a private debt to the nursing home.

Why Plan for Medicaid?

As life expectancies and long term care costs continue to rise, the challenge quickly becomes how to pay for these services. Many people cannot afford to pay $7,000 per month or more for the cost of a nursing home, and those who can pay for a while may find their life savings wiped out in a matter of months, rather than years. Fortunately, the Medicaid Program may be there to help. But the eligibility to receive Medicaid benefits requires that a person pass certain income and asset tests. The reason for Medicaid planning is simple…a person plans so that if he or she needs it, he or she will be eligible to receive Medicaid benefits.

Do You Need An Attorney?

The Medicaid rules are complicated and often misunderstood. Many times people receive incorrect information from their neighbors, friends, financial advisors, or even from the nursing home staff. In addition, with the State budget constraints, Medicaid applications are increasingly being scrutinized by government caseworkers. For these reasons, it is important to consult with an attorney who is familiar with the Medicaid rules and who can properly advise you of the rules, as well as any exceptions or Medicaid provisions that may apply in your situation to help you qualify.

This information is not to be considered legal advice. If you have questions about it, please contact us.

A Guide To Choosing An Elder Law Attorney

by BlogElder Law

Choosing An Elder Law Attorney

The process of finding and choosing an elder law attorney begins by identifying that you actually need one. The question is: Why would you need the services of this specialized attorney?

Here are some questions to ask yourself:

  • Do you or a loved one have questions about paying for long-term care?
  • Are your wills and powers of attorney up to date and in compliance with current law?
  • Do you need advice on what kind of care your loved one needs and what their rights are?
  • Are you looking to preserve assets for the duration of your illness?
  • Are you concerned about assets being left for a spouse’s care in the future?
  • Have you or a loved one been diagnosed with dementia, Parkinson’s Disease, ALS or any other chronic medical condition which will, most likely, require long-term care?
  • Do you need to pursue guardianship on behalf of a loved one?
  • Do you need information on Medicaid planning?
  • Do you or a loved one have a disability that you need to legally plan for?

If you can answer yes to any of these questions, you may need an elder law attorney.

Once you have identified that you need an elder law attorney, the next step is finding one. Law are different for each state. Attorneys must be licensed by the state. Therefore, it is important to find an attorney licensed in the state where you, or your loved one whose planning is concerned, lives (or maybe in the state where their property is located depending on the issues).

When Evaluating an Elder Law Attorney, Here are Some Good Questions to Ask:

Are they a CELA or a Certified Elder Law Attorney?

This special certification is the “gold standard” for elder law practitioners. Selecting an attorney who has been certified as a CELA means that you are choosing an attorney who has gone above and beyond to prove their commitment to older adults / people who have a disability.

—Attorneys Janna Dutton, Kathryn Casey, Helen Mesoloras, and Melissa Kallio are Certified Elder Law Attorneys.

Do they practice more than just estate planning?

An elder law attorney is not the same as an estate planning attorney! Although most elder law attorneys incorporate estate planning into their practice, elder law planning is different from estate planning.

Elder law planning seeks to preserve your money, income and assets to be used for your benefit and care while you are still alive. Estate planning focuses on the distribution of your assets after you die. Elder law attorneys have a deep understanding of the regulations for public benefits, the rights of older adults / people who have a disability, and the unique needs of families caring for an aging loved one. Make sure the attorney you choose practices more than just estate planning!

This information is not to be considered legal advice. If you have questions about it, please contact us.

4 Cs of Elder Law Ethics

by BlogElder Law

Understanding The 4 Cs Of Elder Law Ethics

Shouldn’t you be included? After all, you might be very involved in helping him or her with important matters. Perhaps you even arranged for this appointment.

There are several reasons why lawyers need to meet with your family member or friend alone for at least part of the case evaluation process, so please don’t be alarmed or offended. Family involvement is very important, but try to understand the way legal services are provided to elder or disabled clients.

It may help first to understand the “Four Cs” of elder law ethics that lawyers are required to follow. We are happy to discuss these ethical guidelines or any other aspect of our legal services. Above all, we seek to promote the dignity, self- determination, and quality of life of your loved one.

Client Identification: First, all lawyers have an ethical obligation to make it very clear who their client is. The client is the person whose interests are most at stake in the legal planning or legal problem. The client is the one — the only one – to whom the lawyer has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in elder law, because family members may be very involved in the legal concerns of the older person, and may even have a stake in the outcome.

It is possible, in some circumstances, for more than one family member to be clients of the same lawyer. This is common with married couples. However, in most of our cases, we will identify the elder or disabled person as our client. We will do this regardless of who is paying the bill.

Conflicts of Interest: Second, lawyers have an ethical obligation to avoid conflicts of interest. This means that, in most situations, a lawyer may only represent one individual. For example, when legal planning involves property, such as a family home in which several people have an interest, these interest are actually or potentially conflicting. Sometimes, joint representation is possible, even with potential conflicts of interests, but it is more likely that we will be representing only the older person whose interests are at stake. We find that we do the best job for the older person by representing only him or her. This is especially true when the older person wants to discuss a power of attorney, a will, or planning for long-term care.

Confidentiality: Third, lawyers have an obligation to keep information and communication between our client and us confidential. That means that we cannot share client information with other family members without the client’s approval. Some clients want all information shared and family members involved in discussion. Some merely want family members to be given general updates. Some want complete confidentiality. It differs from person to person.

In all cases, we strive to keep our clients – and whomever they choose to involve – fully informed of the issues, options, consequences, and costs relevant to their concerns, and to be responsive to their goals and objectives.

Competency: Fourth, lawyers have special ethical responsibilities in working with clients whose capacity for making decisions may be diminished. Lawyers must treat the impaired person with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants.

“But Mom’s not going to be able to explain (or understand, or remember) everything!” you might say. We find that most older people who come here are able to tell us what the problem is and how we can help. Sometimes, we’ll need to ask relatives for details, such as addresses or dates or phone numbers, but even people in the early stages of Alzheimer’s disease can usually communicate well enough to give us direction.

Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and what it is they want, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer all the questions, it makes it difficult for us to determine our client’s level of understanding.

There will be times when we conclude that a client does not have the legal capacity to complete a requested document, such as a power of attorney or a will. If that happens, we will not be able to assist with that particular task. We may, however, be able to explore other options.

If a client is unable to make decisions due to diminished capacity and is at risk of serious physical, financial, or other harm, the ethics rules require us to consider actions to protect that client. This may include consulting with others to assess the client’s situation or taking steps to preserve a legal or personal interest of the client. As we decide what steps to take, we will be guided by our client’s wishes, values, and best interest, and we will do our best to intrude as little as possible on his or her right to make decisions.

The Ethical Rules Make Practical Sense, Too.

Being clear about whom we represent, meeting alone with the client, respecting confidentiality, and assessing client capacity, protect the family, as well as the client. For example, you’ve probably heard of a will or power of attorney being challenged. It is not uncommon to find cases claiming that family members or others had “undue influence” over the older person, and that they benefited unjustly from decisions that were made. Family and friends who maintain some distance from the legal counseling and document signings are less likely to be accused of undue influence.

We don’t want our clients’ choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the matter. That’s probably the kind court case you, too, would rather avoid.

Source: American Bar Association

This information is not to be considered legal advice. If you have questions about it, please contact us.

Dementia Terminology

by BlogElder Law

Dementia Terminology

“Communication breakdown” in Alzheimer’s disease and other causes of dementia are consistently listed among the stressors for caregivers. Here is a list of some of the terminology used in describing the affects of the disease, some of which limits the person who has dementia.

Affect: the outward manifestation of a person’s feelings, usually referring to facial expression and posture.

Aggression: A forceful, attacking action; may be physical or verbal and may be directed at people or at objects.

Agnosia: The inability, in the absence of any direct impairment of the sensory organs, to recognize familiar stimuli experienced by means of senses. The inability may be related to any of the senses: sight, hearing, touch, smell, and taste. Visual, auditory, and tactile agnosias, however, are most common.

Alexia: A disturbance in the ability to read. Primary ALEXIA is related to visual AGNOSIA, whereas secondary ALEXIA is due to deficits in language. Many people who have dementia can read aloud fluently but have no comprehension of the material they are reading.

Anomia: The inability to recall the correct word or phrase to express an intended thought or to identify a familiar object accurately.

Aphasia: A deficit or loss of the ability to express oneself by means of speech or the written word in the absence of any muscular or intellectual impairment.

Apraxia: The inability to carry out skilled and purposeful movements in the absence of any physical impairment or paralysis.

Catastrophic Reaction: An excessively anxious, fearful, or despairing reaction to frustration resulting from an individual’s inability to perform a task or understand a situation.

Circumlocution: “Talking around the issue,” a characteristic of speech common to persons suffering from ANOMIA. In their effort to express a thought or identify an object, they describe it by its use, location, or other characteristics.

Cognitive Functions: The intellectual process, by which one becomes aware of, perceives, expresses, and understands ideas. These functions involve all aspects of perception, memory, reasoning, and language.

Confusion: Bewilderment and lack of orderly thought and reactions based on fact. Also, the inability to act and choose decisively.

Cortex: The outer layer of a body organ. The brain’s outer layer is called the cerebral cortex. It is most highly developed in humans and is the seat of higher intellectual functions. It is the part of the brain that is primarily affected by the process of the Alzheimer’s disease.

Delirium: An acute episode of confusion and disorientation.

Delusion: A persistent but untrue belief or perception that is held by the person even though it is illogical and not real.

Disorientation: The lack of accurate knowledge concerning time, place, one’s identity, and/or the identity of familiar others. The lack of knowledge regarding the purpose of events may also be included in this definition.

Echolalia: Automatic and often persistent repetition of words and/or expressions just heard by the individual; acting as an echo.

Hallucinations: Sensory perceptions that are not the result of external stimuli. They may affect any of the senses and they are very real to the affected person but to no one else. They are frequently confused with illusions.

Illusions: Misperceptions that result in a mistaken impression about things. Everyone experiences illusions at one time or another, but they occur with more frequency in people with impaired perceptual abilities.

Inertia: The inability to begin a task or initiate a movement in the absence of a concrete stimulus.

Motor Planning: The ability to conceptualize, organize, and carry out a particular series of movements toward a specific end.

Paraphasis: The use of an inappropriate word to express a thought or identify an object or person. Although the person’s intention is correct, the wrong word comes out.

Perception: The ability to interpret accurately and correctly information received through the senses.

Perseveration: The persistent repetition of an action associated with the inability to stop unless an outside force intervenes.

Prasis: The ability to carry out skilled, organized movements.

Receptive Aphasia: The inability, in the absence of sensory or intellectual impairment, to understand spoken or written language.

Spatial Orientation: The ability to know where one is in space and relative to objects in one’s environment. Also the ability to perceive how objects relate to one another, either in front, behind, on, under, to the left, or to the right. It is associated with directionality, which is an appreciation of movement toward, away from, to the left, to the right, upward, and downward.

This information is not to be considered legal advice. If you have questions about it, please contact us.

Why Engage An Elder Law Attorney To Prepare Your Medicaid Application?

by BlogElder Law

Why Engage An Elder Law Attorney To Prepare Your Medicaid Application?

The Illinois Medical Assistance Program (“Medicaid”) is the health care program for individuals who do not have another form of insurance or whose insurance does not cover what they need, such as nursing home or supportive living care. A significant number of people must look to Medicaid to pay for their nursing home and supportive living care. However, the eligibility rules are complicated for applicants for Medicaid long term care.

 

WHAT CAN AN ELDER LAW ATTORNEY DO?

Thorough review of financial records to identify potentially problematic transactions

Illinois Medicaid applications for nursing home or supportive living care are subject to enhanced scrutiny. An attorney will review the 60 month transaction period for issues that may affect the approval of the application and will either advise corrective action or, if it should not affect eligibility, present the transaction in such a way that it will not disqualify the applicant.

For example, certain cash transactions, reimbursements, payments to caregivers, wedding or graduation gifts, or other seemingly harmless transactions can become problematic unless properly presented.‘

Provide planning options

An attorney will be able to properly advise as to how excess assets can be utilized for the benefit of the applicant or his or her family without disqualifying the applicant.

For example, there are specific rules which can help protect a spouse in the community, certain trusts which can help preserve resources, and certain exceptions for individuals who have disabled children.

Advocate for you

The process of applying for Medicaid can be long and demanding. An attorney can act as your advocate and take some of the stress off of you. In addition, the attorney can serve as the main contact with the Medicaid agency and the applicant’s facility.

Provide correct information regarding the application process and the Medicaid rules

Non-attorneys seldom have sufficient knowledge about the eligibility rules and the exceptions and often times provide incorrect information to the detriment of the applicant. Since the Medicaid rules are subject to change, it is important to have the most current information on the process and rules. In addition, it is more cost effective and efficient to have an application properly reviewed prior to being submitted, as opposed to supplementing an application after the fact.

Attorney fees are allowable as a means of spending down excess resources

Excess assets will need to be spent prior to Medicaid eligibility. If the attorney’s assistance can accelerate eligibility by even one month that will generally cover the fee. Additionally, payments of attorneys’ fees from the assets of the applicant are allowable and in most circumstances those assets will otherwise be paid to the nursing home.

This information is not to be considered legal advice. If you have questions about it please contact us.