• A new answer to an old, unresolved problem: “Who will take care of me?”
• Estate planning is about “death and taxes.” Death and taxes? What about me?
• When we are incapacitated, a caring and empowered advocate makes all the difference.
The single elder. He or she may have never married, be divorced or the survivor of a marriage. No matter the reason that they arrived at this point, all singles have a common worry. “Who will help me when I cannot manage my affairs?” “Who will be there for me?” The questions continue beyond incapacity to death. “Who will remember me?” “What have I accomplished? What legacy do I want to leave?”
The law’s standard answer is “estate” planning but the answer almost always comes up short. Estate planning is about “death and taxes.” Do an internet search on the topic and the results are invariably about taxes on your death. Death and taxes? What about me? The glaring deficiency of “estate” planning is the failure to resolve the serious life issues such as incapacity. The planning is for the “assets” not the person. This focus on property results necessarily in putting the single elder in serious risk. Standard “estate” planning has no answer for the echoing question “Who will help me?”
As an elder law attorney I am often called upon to help person during times of health crisis. Often it is upon entry into a nursing home. In most cases the client has a loving and trustworthy spouse or child to help out when dearly needed. But, what about the single person?
I have developed a new process, individual focused planning, that addresses the need of the single elder while alive and proceeds to “make a difference” upon death. In this article I will focus on the life issues.
Let’s take a look at what can happen without adequate preparation.
George was a solitary man, he never married. At 85 he lived alone in his apartment for more than 30 years. He was a very active and independent fellow. While driving home from church one Sunday he hit the car in front of him at a red light. He some minor injuries and in addition was agitated, belligerent, confused, and he had very poor memory. Initially he was treated for concussion in the hospital but it became clear that he had a stroke or some other brain event that caused the accident. They determined he was unable to take care of himself and he had no wife, child, or anyone to take over. He could not return home. The hospital petitioned the probate court for the appointment of a guardian to make the decision of where he should go.
The probate court appointed a public guardian who put him in a locked facility for his own safety. Weeks later his friends found out what happened to him. The apartment manager stopped a stranger who was attempting to get into George’s apartment. He turned out to be a locksmith hired by the public guardian to change the locks on the apartment. Thereafter his nephew hired me to get him out of the locked facility. I visited George. He was fully recovered from the accident and he wanted to go back home. He said felt like he was in a jail. The only crime he committed was getting old.
I spoke with the public guardian who refused to have George released to his home. George “needed 24 hour care” and he had a report by a doctor to prove it. We hired a professional care manager who put together a home care plan and the lined up the aides to do it. I presented the proposal to the public guardian. He again refused but said take it to the judge and see if he will agree. A month later we had a hearing in probate court and the judge agreed to give it a try. Four months after he left for church George was back in his apartment, with the daily assistance he needed. The probate court retained control over him and his property.
One should note that the people George would have relied upon in case of emergency – his close friends, his family – were frozen out of helping him. We note also that the care plan provided by the guardian was easy to administer. Once George was transferred to the facility, the guardian only had to pay the bills and visit him once every quarter – of a year. George’s wishes were not considered. Had George’s friends not intervened it would have been worse for George. The guardian had the authority to decide that he would never go back home, clean out the apartment and let it go without asking him. His temporary stay in that locked facility would have ended only on his death.
George’s story is typical, predictable and instructive. An incapacitated person needs somebody to take care of their affairs until they get better. This assistant must be legally authorized to handle the personal, medical and financial affairs lest they stand by helpless. George’s friends visited him in the nursing home and tried to get the guardian to let him go home. He would not even talk to them. It was as though they had to stand on the side of a pool while George drowned.
George’s fate is entirely avoidable. After I handled George’s case I had another one that turned out very differently and the difference was one thoughtfully considered advanced planning.
Evelyn, age 95, was in living in an “assisted living” apartment that was in a nose dive. Her friend Mary would often find her still in bed at two o’clock in the afternoon, no breakfast, no lunch, nobody checked on her at all and there was nobody who would respond to her calls. Completing the picture of utter disregard for her, the staff was stealing from her. Nothing nice stayed in the apartment long. Even the little crystal candle holders her friends used to celebrate her birthday were gone. Evelyn had to get out of there, but how? She could not contact, travel, visit, interview and judge the suitability of other residences. Mary, had no authority to do anything other than complain with no results to the management. However, Evelyn had a living trust with a caring trustee. Mary contacted the trustee, who hired a nurse care manager. The nurse and Mary found a place that was perfect for Evelyn. They treated her like a queen until she passed away.
Evelyn’s case turned out better because she had a caring trustee to handle her finances and who respected the direction of Mary. In part, Evelyn’s case revolved around luck. She was lucky that Mary was a firm advocate. She was lucky that the trustee was sensitive and caring enough to look out for Evelyn’s best interest. It would not have been difficult to find a doctor who would recommend a nursing home for her. This would have been entirely dismissive of her wishes. Possible? Yes, perhaps even probable. Evelyn was lucky. The legal literature is filled with incidents of trustees more concerned with “estate administration” than remembering the person it is all about. Can Evelyn’s result be duplicated even without her “luck?” Yes.
Through individual focused planning involves we address the needs and wishes of the client. It goes without saying that if we want our desires empowered we must let somebody know what those are. We must clearly inform them as to what we want. Then we must empower that person to make it happen. This is the center of our plan. We identify what we want, communicate it and empower those who will carry it out. The planned use of savings takes direction that comes through a coherent plan.
There are four components that must be put in place and work together. With these in place single elders will be assured that if incapacity strikes, then they will be well cared for according to their desires.
First, there must be enough available funds to purchase assistance be that in-home care or in another residential setting. In the realm of “elder care” money equals options. Those funds may come from a combination of liquid assets, long term care insurance or reverse mortgage.
Use of long term care insurance or a reverse mortgage brings in a whole new arena of considerations. When should a reverse mortgage be used? Which long term care insurance policy will best fit our needs? The policy chosen must allow skilled advocacy to pay benefits when and where we want. Otherwise a person may conclude they have only purchased “nursing home insurance” rather than a fund to avoid the nursing home.
Second, there must be thoughtful “successor planning.” Who will succeed the client in the day to day management of affairs? Who will be the assistant? Who will be the advocate? This person or team must have instruction, integrity and the ability to implement the life plan. They must possess professional level knowledge of management of money and investments. They must be aware of benefits available to the elder from public sources, such as Medicare, and private such as our insurance. Finally, they must be willing to do what it takes to maintain the client’s independence.
Third, the plan must have binding directions and standards so that expenditures will be made as contemplated. It is through the instructions that the elder can direct the sort of assistance that will be provided. It will direct the priorities that must be met. In the above example, George needed an aide available around the clock, but he had a one bedroom apartment and had to move to bigger quarters. The individual focused plan addresses such issues in advance so that the client’s preferences are known and followed.
Fourth, and some would say most important of all, there must be an oversight person or “protector” to monitor the successor trustee. This oversight person may be a friend, such as Mary, or it might be a “professional care manager.” The protector does not have day to day duties and in fact may not be ever be called into action. But if he or she is called to make changes the Protector can is empowered to do what needs to be done. It may be to “fire” and replace the successor trustee or to go to court for the client. This extreme power may never be used but it is there to insure our life will proceed according to our plan.
We have put these pieces together in our individual focused planning. Clients are comforted in knowing that their wishes will be followed even if they are “incompetent.”
Old age can be a cold uncaring place. Or, it can be as caring and comforting as we choose to make it. That’s the good news. We can choose to make it according to our specifications.