We have had number of educational programs over the past couple years. There is one continuing lesson I want to share with you. I offered to review any attendee’s “estate planning” documents from the Elder Law point of view. The distinction is that elder law focuses on life issues and so we call it “life planning.” Estate planning is about “Death and Taxes.” I analogize the difference to a life guard. The “Death and Taxes” lifeguard will help you after you have drowned. The Elder Law lifeguard will help you while you are struggling.
Many folks have taken me up on the offer to review their existing “estate planning’ documents. I focused on their trusts and powers of attorney. In every case the documents did not grant complete authority to take care of all matters of the client. I had the following report:
They were all inadequate.
What did that mean? That failing could force anybody into life-long probate -guardian or conservator. And that means that the probate court is in charge of every facet of your life. Where you will live, what medical treatment you will receive is all under the control of the guardian. All your finances will be in the public record. The conservator will file and inventory of your property and will file an account every year. The account will detail every dollar that you got and every expenditure that was made on you. Attorneys fees for the public hearings may run into the thousands of dollars. I’ll give you a practical example:if a husband is in a nursing home his wife may have to spend over $50,000 in nursing home bills and attorney fees before the probate court will give her permission to withdraw from his IRA. And, on top of that, the court may open a conservator file and put all of his assets under probate supervision till he dies.
All of that is easily avoidable.All you have to do is have your legal documents tailored to fit your needs. You can be in control even when you must rely upon others to help you. So if you are at all concerned about aging and your long term care needs, just give us a call and let’s get your protection started! And, of course, we will help you with Wills and trusts as you may need. But, still 99% of us folks don’t need to worry about taxes after death so unless you are a multimillionaire you don’t need an attorney expert in estate taxes. An Elder Law focused life plan must, and does, include a will or a trust to carry out your wishes for property distribution after you die. Get started now!
A common scenario in my elder law practice is this: a parent cannot safely live alone and moves into a child’s home. One spouse has died and then the second develops with health problems that need “24 hour care.” It often goes like this
After Dad retired he and Mom continued living in the old home. After many happy years in retirement Dad passed away a few years ago. Mom started needing more help and Jill, the oldest daughter became her “executive assistant.” She’d make the 20 mile drive to visit, take Mom shopping or to her doctor’s appointments. From time to time they talked about Mom moving to a senior apartment closer to Jill’s house but Mom wanted to stay in the house where she lived for almost 60 years. Then Mom fell and broke her hip. After rehab she still could not return to her some so they had her move into a spare bedroom.
Recovery went slowly but eventually she returned home. And then she had her second fall. They went through the same process. This time recovery was even slower. Summer passed, then fall, then winter. They planned Mom would return home in the spring after being away almost a full year.
But then the fire happened. A neighbor saw the smoke and the fire department got it under control pretty quickly. The kitchen is part gone, but the home is fixable. The best guess was that a squirrel got in and chewed insulation off some wires, the wires shorted, overheated and started the fire
They file a claim with the insurance company who summoned the fire report which stated “No injuries. Nobody was living in the home at the time.”
Will the company honor the claim? Likely not.
A recent decision of the Michigan Supreme Court reminds us that we only have insurance according to the strict words of the policy. The case is Yu v. Farm Bureau Insurance Co of Michigan. In that case Mr. Yu was living in Portage and then got a job in Lansing. He and his wife got an apartment near work and visited their home on weekends. One day in winter a neighbor called them reporting big icicles on the side of their house. It turned out they had a broken water pipe in the bathroom and some pretty extensive damage.
The insurance company denied the claim because the home was not “occupied” under the terms of the policy and in fact the Yus’ “vacated” the home. It was not their primary residence. The court agreed and opined they could have gotten insurance as a seasonal or second home.
The moral is this: All homeowner’s policies define the term “occupied.” In fact many policies specify that the home is not “occupied” as the primary residence if the owner is absent for more than six months at a time.
So, if you are going to be absent from your home for an extended period of time, check the homeowner’s policy. You may find the home is uninsured. An insurance company may legally put many restrictions on coverage. You should review your policy and speak with a company representative to be sure you are reading it the same way they do.
Many northern retirees have two addresses: one in their home state, such as Michigan; a second home/condo in Florida or Arizona. All have plans made to receive information if something happens to their house while they are enjoying warm southern weather during the usual nasty northern winters. A neighbor or family member keeps an eye on the house and goes inside periodically to check for damage – say a critter has chewed a hole in the soffit or a pipe has burst during a brutal cold spell. The plan is: “If you find any damage let me know and I’ll call the insurance company and get a contractor to fix it.”
Will the company honor the claim? Maybe not.
A recent decision of the Michigan Supreme Court reminds us that we only have insurance according to the strict words of the policy. The case is Yu v. Farm Bureau Insurance Co of Michigan. That case turned on the policy’s “occupied” home provision.
Homeowners can rest assured that they can go on vacation and their homes are insured. The same is true for Snowbirds.
But.
All policies have limits on the definition of “occupied.” A common term is that the owner shall not be absent from the home for more than six consecutive months.
So, what if a Snowbird leaves with the first freeze on November 1st and comes back May 15th? What if a spring windstorm blows a heavy tree branch into the roof on May 10th? What if they have a six month limit on unoccupied status? November through April is six months. Is the damage insured? Doesn’t look like it. It looks like the insurance company will deny the claim.
So, limiting one’s absence to just under the policy limit will guarantee coverage? Maybe not.
A policy may also have a requirement that the homeowner exercise due diligence with respect to maintaining the home while the owner is away. There can be other restrictions.
The moral is simply this: check your homeowner’s policy for your “occupied” coverage. An insurance company may legally put many restrictions on your coverage. You should review your policy and speak with a company representative to be sure you are reading it the same way they do.
How do you find an elder law attorney? There are many tip sheets that suggest that you get a free appointment and ask a lot of questions so that you can make your choice. The problem with that advice is that the best elder law attorneys do not give free appointments. They do not have time on their hands, their calendars are often full weeks in advance. And, in point of fact, family members dealing with an urgent matter don’t have time to take off from work and go see two or three attorneys.
A little bit of advance preparation can make the process speedier and the result much more satisfactory.
First, identify why you are looking for an attorney. Are you a child of an aging parent who needs help with his or her daily matters? Are you considering a situation that might go to court, such as a parent whose utilities are shut off for non-payment but refuses any help? Are you investigating government benefits for nursing home or in-home help such as Medicaid or Veterans Benefits? Does the elder have a disabled child who lives with the parent and will need protection after the parent dies? Was your elder injured in a senior apartment or nursing home?
The point is not all elder law attorneys handle all matters.
Here are things you can do to narrow down your choice before calling for an appointment:
1. Do not merely rely upon the recommendation of a friend or co-worker. While such tips are very valuable, the attorney may have met their needs but will not meet yours. Take the name into consideration and do further research.
2. It is a good idea to do your own research on your matter. While you should not expect to come to a complete answer, you will be more informed and can get more out of the appointment with the attorney. You will be able to ask informed questions and ask about alternatives.
3. Review the attorney’s website. While this is an obvious step it can answer many questions about the attorney’s experience and matters handled. You can call to confirm that the attorney handles your situation.
4. Is the attorney member of an elder law association? This would include membership in the National Academy of Elder Law Attorneys (NAELA.org) or the State Bar Elder Law section. If you are considering Veterans benefits for an aging Vet look for membership in a veterans advocacy organization. Note that it is not sufficient if the attorney is certified for practice before the Veterans Administration. Why? Because any attorney can request admission and it will be granted. However, the VA does require proof of completion of continuing education classes after one year and that bears positive consideration.
5. Is the attorney certified in elder law? The National Elder Law Foundation’s (NELF.org) certification process includes years proof of experience in elder law matters, requires peer recommendations and the applicant must sit for an all day written exam. Less than half pass the test. Many State Bars associations offer their own certification process or will recognize other certification providers.
Upon making an appointment.
6. When you have identified an attorney or two, consider whether you will feel comfortable working with her or him. Not all attorneys have the same “bedside manner.” Some are very gregarious and seem to spend more time socializing than practicing law. Some are very analytical and can come off “cold and distant.” Some are “business persons” who seem to sell a “solution for your problem.” While any of the attorneys may be offering sound advice you want to feel comfortable working with him or her.
7. If after an appointment, you feel like the attorney did not listen to you or he/she recommended a course of action that doesn’t feel right for you, consider getting a second opinion.
8. In the final analysis when it comes to dealing with problems associated with aging, some informed action is better than none. That is true even if “the attorney is a jerk.” The alternative to timely protective action is lifetime probate of guardianship. While there are cases when involvement of the probate court in an elder’s life is a good thing, the truth is for most folks the significant time and expense is something to be avoided.
When might the probate course be best? Your only recourse may be to petition the probate court to hold a hearing to appoint a guardian when there is no trustworthy person to help the elder or the elder refuses to allow any needed assistance.
If you follow the above tips you should have a satisfactory experience with your lawyer.
Over the 22 plus years I have been in elder law I have too often received the call from the family “Dad died last night.” He went to a nursing home after a hospitalization and they planned he would return home after a few weeks. But, it didn’t happen. It is true, seriously ill elders can die from something that a younger person would simply bounce back from. But still you wonder “did it have to happen?”
Sometimes, it did not have to happen.
I attended the fall elder law conference of our State Bar and attended a presentation by national expert in facility litigation, Barbara Mackenzie. She gave a list of injuries that should not happen and if they do, they are warning signs that something may be seriously wrong.
Use this list if you have a family member in a nursing home or any elder care facility such as assisted living or memory care. Each of the following is an indicator of a potential life-threatening problem. Use this rule: Any problem must not be repeated and must have a prevention plan.
1. Bruising: Always check your elder. Periodically be there at bathing time. If you see a bruise or any injury including skin rash or redness, investigate! Ask how, when and where it happened? What is the treatment and prevention plan? When an unexplained bruise appears review with staff whether they know what caused the bruise or not. If they do not know there is a chance it happened in bed.
2. Bed Injuries. A bed should be a safe place. If there are rails to keep your elder in he or she may try to climb over them to get to the bathroom. It is very difficult for a frail, weak elder to climb over a rail. They may easily fall and suffer a bruise and or worse. There have been cases where the fail elder died of suffocation when her neck got caught between the bed and rail.
3. Bed sores/skin ulcers. Unless your elder has been diagnosed with a medical condition that makes such injuries likely, they should not be expected. These may happen in bed, especially for incontinent elders, and also in wheelchairs. An ulcer on an ankle may result from being immobile in the chair all day long. These are another reason you should be present at bathing. Know the early stage warning signs and be sure the facility has a treatment plan.
4. Injuries from Restraints. Restraints keep an active elder from getting up. They may be used in a chair or in a bed. Wherever they are used the elder will try to get free of the restraint and be injured in a number of ways. If it is unsafe for the elder to walk, alarms may be used and are less dangerous. They can be used on chairs, or on the floor by the bed. When the elder moves enough the alarm sounds. Because of the great risk of injury restraints should not be used without medical orders and with an approved plan.
5. Choking/asphyxiation/aspiration. If your family member had a choking episode during meals you should inquire. Did he/she have a special diet? Was it followed? Sometimes an aide will give a resident the wrong meal.
6. Head Injuries. If your elder has a bandaged wound on the head find out not only how it happened but what was the facility response? Injury to the head can also result in serious brain injuries including concussion and uncontrolled bleeding for a resident on blood thinners.
7. Falls. Use this as your rule: Falls kill. Any fall should be investigated for cause and a plan of action. A broken hip can be the beginning of the end for an active elder. A broken bone requires surgery. The elders may not survive the surgery, the anesthesia or the subsequent consequences from being inactive. Falls are especially dangerous for a person on blood thinners.
8. Medication errors. It should not happen, but it does. Your family member should not receive another person’s medications or those that are contraindicated.
9. Wandering. Elders are often injured when they wander outside of the facility Unplanned leaving the building should never happen. Determine how it happened and what the correction plan is.
10. Anxious and Fearful. If your elder is anxious and fearful, it may be due to treatment he or she receives when nobody is around. According to McKenzie much elder abuse occurs on the overnight shift when nobody is supervising the employees or other residents.
There are number of themes running through all the above that together make an Emergency Response System:
1. Determine “what happened?” Get the facts, do not be satisfied with quick explanations that it was a freak occurrence that will never happen again.
2. “What was the facility’s response?” How fast did they act? Was the resident thoroughly evaluated and was appropriate medical treatment obtained?
3. “What is the facility’s plan to prevent it from happening again?”
4. What is your plan of action?
Once again, the moral of the above is that you must be your elder’s advocate.
Camera in the room. We note that many of the injuries happen in the resident’s room. While you cannot be there in person you can be there virtually. Put a camera in your elder’s room that you can access from your computer or cell phone. You can check and see how s/he is doing and call the facility if you notice something that needs attention. An injury incident that happens in the room will be recorded. A camera may be especially beneficial for cases of falls. Was the elder calling for help and no one came? Did it happen while an aide was in the room?
If your elder is anxious and fearful you can observe and see if anything happens at night to cause the problem. One family recorded an aide physically and verbally assaulting their parent. Do residents wander in at night? Does your elder experience hallucinations at night? Does s/he call for help and no one comes? You can spot the problem and have it addressed.
Michigan law allows you to have a camera in the room as long as you do not include other residents in your camera view, You may want to inform the facility not so much as to get their permission but perhaps your elder’s room will receive ‘gold star treatment.’
Make your plan. Determine the cause of the injury. Determine the facility’s response. Make your own plan. For each incident you will investigate what happened and what medical treatment your elder received. You will also investigate any plan they have put in place to remedy the problem. You may find that too often they treat the incident as an isolated event rather that as a symptom of a bigger problem. You may decide that your elder needs to move from the facility because they cannot provide proper care.