This is a difficult, but necessary subject to write about. It is a difficult subject to begin with and it is not an easy legal subject either. It is necessary because the patient’s advocate must have some idea of what to expect in a nursing home.
Let us say for example a wife has placed her husband in a nursing home. He was transferred there from the hospital and the family hoped he’d be home in a few weeks. After a few weeks the call comes. “Dad, died last night.”
It happens. It is a report I hear perhaps too often. We talk a bit, I give condolences. I hear the doubt and the dashed hope in the voice. It is part recognition that Dad was seriously ill and part questioning “did it have to happen?”
Did it have to happen? We all know it is true: People die in nursing homes. These are places for very sick and weakened people. Nobody goes there unless it is the last option. It can be a dangerous place to be even if you are healthy. Like schools where kids spread whatever is going around, nursing homes always have the current contagion. Except these are not healthy students. Instead of a sniffle a resident gets pneumonia. The antibiotics cause conflicts with the residents other medications and the resident becomes even sicker. And, that is just part of the disease process. You are weakened, much more susceptible and much more likely to have dangerous complications.
But, there are times when death or injury is not the result of “the disease process” but it is the fault of bad care.How can one get a sense of when we might look for other causes of complication, injury or death? I spoke with a prominent nursing home attorney and here is a cluster of “should not happen” kinds of cases. Not every one is the fault of bad care, but they do raise the question “Why did this happen?”
On a quick review one can see that none of these cases would be thought to be a “result of the disease process.” While that first thought may not be accurate, these are the kinds of cases that merit review.
There are the other cases where answers to questions are not so obvious. Suppose your family member has bruises over her body. That could be evidence of abuse or improper handling of the patient. They might also simply be a reflection of the fragile state of the resident. She may bruise easily with ordinary assist with transfers.
One might notice that there are some problems not listed. Examples include giving a resident the a medication that was supposed to be discontinued, or failing to give the medication to the resident. What if a resident’s condition deteriorates and is rushed to the emergency room near death? Did the lapse in treatment cause the harm or was it “the disease process?” These kinds of cases involve the question of malpractice.
Malpractice involves the judgment of a licensed professional such as a doctor or nurse. For example suppose a resident wandered out the door more than once. Suppose the treatment was a nightly sedative to which she reacted very badly and which ultimately lead to her death through a series of complications. One may easily conclude that the doctor’s decision to give the prescription lead to the resident’s death. But it is not that easy. This was an exercise of medical judgment and these always have necessary risks. That is what doctors do. Balance benefits and risks.
So, what does the family do when they see their resident’s condition getting worse? What about prevention of death or serious injury? This is another subject in itself, but here is a quick and perhaps obvious tip. Be a patient advocate.
A nursing home is not a place for a passive patient advocate. If your family member fell, find out what happened and what is being done. Watch for sudden weight loss, signs of dehydration or sudden confusion. You might do the resident’s laundry if you consistently observe soiled clothing. While incontinence is unpredictable, the resident should receive reasonably prompt attention. Start inquiring if you observe withdrawn or fearful behavior toward staff. Put dates on bandages to monitor how frequently those are changed. Do you question whether a problem is being treated? Ask the nurse to review the chart you can see what conditions are being addressed and get an idea of what should be happening. The resident’s patient advocate has a right to see the medical chart. If you are denied access you can contact the assigned Long Term Care Ombudsman assigned to the facility.
Bottom line: if you have a question, give us a call. We will refer you to an attorney experienced in nursing home injury cases.
When most people think of “getting their (legal) affairs in order” for retirement, they typically “plan” to live a leisurely retirement and then pass away quickly. The plan details call for stretching out the IRA and having enough money to maintain their lifestyle through retirement. The plan will then pay as little as possible in taxes so the heirs can get their maximum inheritance. I call this the “death and taxes” approach to what most attorneys call “estate planning.”
But, life does not go according to plan. And, that is what elder law is about. It adds to traditional planning the ability to successfully deal with the challenges of aging. It is surprising how the vast majority of people are not prepared.
The Reverend Billy Graham wrote in his book “Nearing Home” that he was prepared to die, but he was not prepared for growing old. Growing old is a challenge. Art Linkletter said it: “Aging is not for sissies.”
Planning for death and taxes leaves many people unprepared for the reality of the later years of retirement.
Let’s face it. In spite of our best efforts to stay healthy and active “life happens.” I had a neighbor who was an active gardener in her early 80’s. Her whole yard was a blooming delight. But then the arthritic pain got to the point that one time she had a bad fall. After recovering from the hip and shoulder operations, she did not recover her former active life. The kitchen table talk came to the judgment – “she’s an old lady now.”
There comes a time when we have to admit that we are aging. Like an old mechanic said, “when she gets old, parts break.” The ol’ heart, knees and hips don’t last forever! But getting old does not mean you can’t take care of business. You’ve got challenges, but one of the worst is that people (sometimes your own children!) want to treat you like a child.
You do have to take steps to preserve and protect your independence. The fundamental way to do it is through your powers of attorney and trusts. When these are tailored to your living situation, you will stay in control even if you are “incapacitated.”
Here are some of the ways we help you stay in control:
Perhaps the single most important legal document is the healthcare power of attorney. In our experience retirement changes because of a major medical event. It might be a broken hip, a heart attack, a stroke or diagnosis of dementia. These are all medical events and, as everybody knows, healthcare is getting more corporate and less personal every year. When was the last time anybody saw the family physician visit in the hospital? Now a hospital doctor is the team leader the physician group that will take care of you. You will not likely meet these doctors again.
Here are the components of the medical authority you need to grant:
You can name someone to take care of business while you cannot. This need can easily arise when you are fully healthy! Let’s say you are on your annual vacation and you get a call from home “the drunk down the block parked his car in your living room last night!” You don’t have to rush home. You can have your Power of Attorney Agent call the insurance company and the contractor.
Of course the power of attorney handles much more serious issues as well. Suppose your spouse is in a nursing home and you need to access his or her IRA. Unless you have been given authority by the wage earner you cannot. Being married is not enough. And, the authority must be expressly given. I have seen powers of attorney that failed to have retirement plan powers. If that were your case you could expect to pay the nursing home for three months and pay attorney fees and court costs to get an order from the probate court.
Many people think of a living trust as a way to avoid probate on death. They are surprised to learn that it can have a beneficial role in life care management. In this role the trust replaces the durable power of attorney for financial matters. In fact it is much easier to deal with some kinds of property such as investments and bank accounts with the trust as opposed to the power of attorney. The trust brings an additional advantage and that is control. By a power of attorney we give our agent permission to take care of business for us. With the trust we give our trustee instruction on what to do and the trustee must do it or be replaced. Of course, the power of attorney will be needed for matters that we do not own such as dealing with the IRS or a pension plan.
You can get more information on the above subjects on other pages and articles on our website. But why not just make an appointment and “get it done”? We’ll be happy to help you get safe and secure.
[responsive_vid]Many families looking for a nursing home know they cannot long afford the $8,000 per month cost. They know they will ultimately have to rely on Medicaid. And that brings with it the fear of the mythical “Medicaid nursing home.”
If you read articles in the popular press about nursing homes and Medicaid you will soon hear that Medicaid nursing homes are places to be avoided. They supposedly reek of bad care. And, life is so much better if you “private pay” and avoid a Medicaid nursing home. And all of that is nothing but nonsense.
So, what is a Medicaid nursing home? It is just about every nursing home. Almost all nursing homes in Southeast Michigan participate in the Medicaid program.
Only a few, about 15, in the entire region do not participate. Their corporate strategy seems to be to try to cash in on the higher post-hospital Medicare dollars available for rehab and such. Medicare will pay over $700 per day for full course therapy. Some of these have a captive relationship with Beaumont hospital. Others, notably the Heartland chain, somehow are able to capture the lion’s share of post-hospital Medicare patients. These homes empty the patient’s skilled care benefit. They then pass the patient on to a “long term care” nursing home, which has the same post-hospital Medicare beds. These latter nursing homes too could provide the post-hospital rehab but they don’t get these Medicare patients. They must not have the same “pull” or “connections” as the few do.
The problem with Medicare only nursing homes is that it is harder for a family to get their preferred nursing home. It is much easier to get in if one can offer Medicare days.
Tip: if you think your family member might be in for long term care after the hospital, bypass a short term Medicare only facility for one that has Medicare and Medicaid certified beds.
There is an unanswered question. Since all long term care nursing homes accept Medicaid, will one get better care if one avoids Medicaid and “private pays”? That is, do Medicaid patients get worse care? The legal and real answer is “no.” Medicaid patients receive equal care. You can test this by your own observation.
It is illegal for a nursing home to discriminate by basis of payment source. You can go to any nursing home and you will not see a “private pay,” or Medicare or Medicaid section. You will see no dim and dusty corridors for Medicaid patients. You will see no marking on the door, walls or bed of a Medicaid patient.
You can ask the nurses and aides where are the Medicaid beds and they will tell you they don’t know. And note, since everybody knows that Medicaid has “spend down” you will find some people private paying in a Medicaid bed. You can ask the staff which patients are private paying and which have Medicaid pay and they will tell you they don’t know.
So, there you have it. A Medicaid nursing home is almost any nursing home. And care in a nursing home varies by the quality of the patient and patient advocate more than by how the bill is paid.
Copyright 2019, Jim Schuster, Certified Elder Law Attorney
(If you are looking for a checklist to complete, see our “Clients” page for a handy form)
We know it is hard for many clients to start the “estate planning process.” After who wants to think about dying! But, in elder law there is much living to do before we can consider dying. For example what if:
You are on a vacation and your home is damaged by the weather? Do you have a family member or friend who lives nearby and can take care of everything till you get back?
You have a fall and are in the emergency room? Who has your HIPAA and medical authorization to take care of your medical matters until you can again?
Then, of course, there is the simple fact it is good to have your affairs in order. Do your legal documents protect YOU? Have you provided protection for family when you are not available? Maybe you should take action today?
Here are some questions that may help you.
You must grant authority to a spouse, child or friend to take care of your legal and business matters. This is most easily done by a complete general durable power of attorney. If it is complete, it is one of the most useful legal documents you can have.
□ Have I given an “attorney-in-fact” (agent) authority to handle business matters for me when I am away or unable?
□ Have I named more than one person in case the first cannot do what I need done?
□ Are there times when I would want help with some matters, such as taxes or investments, even though I could do it myself?
□ Are there times when I want my Agent to handle something for me when s/he is at home or work instead of coming over to my house?
□ Am I concerned that I may become incapacitated and need to give family members authority now to help me take care of my legal affairs when I am not able?
□ Would I rather have the Probate Court appoint a guardian because I have concerns about my family?
□ Do I want my spouse or children to be able to sign legal documents for me if I am incapacitated?
□ If I have executed a durable power of attorney, am I sure that my banks, insurance companies, investment companies, credit card companies and all that I do business with will allow my named agents do what I want done for me?
□ Does my spouse have a Durable Power of Attorney appointing me as his or her Attorney in Fact?
□ Do I want to be able to access government benefits even if that means I must place some of my property in an “asset shelter”?
□ If I have executed a durable power of attorney, will my agent need to get doctors’ letters proving that I am unable to manage my affairs before they can help?
The medical field is extensively regulated and involves our most private matters. We need to name a person who can receive confidential medical information and make medical decisions, in accordance with our wishes, when we want them to act for us?
□ Have I signed a HIPAA consent form?
□ Have I named healthcare agents?
□ Is my healthcare power of attorney immediately effective so that my Agent can help me even though I could do it myself?
□ Can my Agent call the pharmacy to check on prescription medication interactions, to check on the results of a lab test if I have not heard from my doctor, or call to make appointments for me so that I don’t have to do it myself?
□ Will my wishes and instructions be followed if I am incapacitated?
□ Can a signed copy of my MPOA be quickly and easily produced should I be in an emergency room and not able to express my wishes?
□ If I am too sick to do it myself, do I want an advocate who fire doctors who are not helping me, hire specialists and argue with insurance companies who are wrongly denying me benefits?
□ Do I want to be kept alive by medical equipment if I am in a permanent coma or vegetative state?
□ Do I want futile or aggressive medical treatment if I am terminally ill?
□ Have I stated my instructions about end of life medical care?
□ Have I chosen who will speak for me and be my Patient Advocate?
□ Have I completed a Designation of Patient Advocate?
□ Have I stated my wishes concerning gifts I wish to make after I die?
□ Do I want to make one last charitable gift after I die?
□ Do I want to make gifts to friends?
□ Do I want to be remembered as a person who helped others after I died?
□ Do I want to name the person, my “personal representative,” who will take
care of my legal affairs after I die?
□ Have there been any major changes in my life since I executed my Will?
□ Do I have a Will complete with all of my instructions?
□ Do I want to avoid Probate?
□ Do I have a family who will take care of me if I become incapacitated?
□ Do I want to provide instructions on how to use my property for my care should I come to the point that is too complicated for me to want to handle?
□ Do I have a written plan for my care should my spouse die before me?
□ Do I have anybody I can trust with my assets if I am incapacitated?
□ Can I rely on children to take care of me as I wish if I become incapacitated? E.g. I may prefer to remain in my own home even though it would be easier for my children if I moved to an assisted living apartment.
□ Do I want to avoid having the Probate Court take over management of my property if I become incapacitated?
□ Do I want to give guidance and instructions to my loved ones on how to use their gifts after I die?
□ Do I want to help my loved ones with guidance and instruction after I die?
□ Am I my spouse’s caregiver and am concerned about who will take care of my spouse after I die?
□ Do I want to provide instructions and guidance for the care of my spouse after I die?
□ Do I have a disabled son or daughter?
□ Do I have a plan for the care of my disabled son or daughter?
□ Am I concerned about my spouse if I have to go to a nursing home?
□ Do I have enough assets to pay for a long term stay in a nursing home and have enough for my spouse and family?
□ Do I want to save money for my family should either my spouse of myself need to enter a nursing home?
□ Do I want to save my home and my life-savings if I long term need nursing home care?
□ Do I want to make an appointment with my attorney to get my affairs in order?
□ Do I want to call Elder Law attorney Jim Schuster at (248) 356-3500 to make an appointment?
Jim Schuster, Certifed Elder Law Attorney, Offices in Southfield and Farmington Hills, MI (248) 356-3500
by Jim Schuster Certified Elder Law Attorney
A power of attorney is a legal document granting another person the power to act as the first person’s agent or “attorney in fact.” (An “attorney at law” is a person who acts as the agent in a court of law.) The powers granted may be as broad or as narrow as the “principal” chooses. The agent acts only so long as the principal approves – the agent’s authority may be terminated at any time. The agent never “takes over” but rather only performs the actions the principal authorizes, which may be to take care of all business of the principal. However, the principal always remains in charge. Where the power of attorney is “durable” the agent may continue even if the principal is not competent. A power that is not durable is suspended while the principal is incapacitated and that is the opposite of what an elder needs.
Every professional knows the critical value of a power of attorney for an elder. The “advance directive” is a specialized power widely recognized as the legal remedy for control over one’s destiny in the face of terminal illness. The patient’s instructions are carried out by the “patient advocate” whose authority is limited to end-of-life decision making. Without an Advance Directive nobody can make decisions for the patient. The only alternative then is an order from the probate court.
All geriatric professionals recognize that a durable general power of attorney is essential to successful aging. It allows a spouse, trusted child or friend to handle the elder’s business while the elder cannot.
Some elders are afraid of authorizing a power of attorney because they are afraid of elder abuse. They may have heard that 80% of the “perps” are family members. In practice, elder abuse is very rare. The vast majority of people who use powers of attorney for elders are loving, caring family members who without the authority could not assist. Powers of attorney are indispensable, but they also can be dangerous in the wrong hands. Choose agents wisely and know that it is a risk with a cure.
An agent is required by law to strictly and dutifully perform only those powers granted. More later on what happens if the agent violates this duty. The power of attorney is indispensable for family members who come to the aid an elder in time of need. Sorting out insurance denials is impossible with authority. A “No” answer to “Are you the insured?” will quickly terminate a call if the child has no authority.
What of the power for abuse? We hear of concerns that children may get a power of attorney from parents and then subject them to elder abuse. There are a number of legal points to consider. First, if the elder is not competent when the document is signed then it is of no effect. A court in a guardian or conservator proceeding may find that the elder did not know what the elder was signing and void the document as well as appoint a guardian. Second, the power of attorney is not often needed for abuse since these children have access to bank accounts of the parent by being joint on the bank account. Third there are criminal laws against abuse. A person who uses a power of attorney is a “person in relationship of trust.” If the agent uses the power of attorney to exploit a vulnerable adult, Michigan law provides for punishment up to 10 years in jail and a fine 3 times the value of the money or property obtained.
In addition the agent who abuses the authority granted may be charged with embezzlement and forgery and receive up to 14 years in jail. Elder exploitation is the misuse of an adult’s funds, property or personal dignity by another person. If you suspect Elder abuse, neglect, or exploitation in a private home or unlicensed facility, notify Department of Human Services (DHS) Protective Services for Adults. Statewide 24 hour Hotline: 855-444-3911.
Probate court is an alternative, but what does it cost? Where the elder is unable to manage his daily affairs and lacks the simple capacity to name the person who will assist in their affairs, the probate court is the only option. A petition to appoint a guardian or conservator must be filed with the court. There will be a formal public hearing. It will cost in time and money, and the elder’s affairs will be in the public court file. A complete inventory of their property will be on file as well as detailed annual accounts of their income, expenditures and a report on their physical condition. It will not be private. The court will appoint a person who will be supervised and answerable to the probate court.
Probate Court form 666 advises the following options be considered first before filing for a guardian or conservator:
•Do not resuscitate order
•Healthcare power of attorney
•Durable power of attorney
•Representative payee.
The protection of the court does not come without a price. One Westland wife found out the hard way. She wanted to sell her home and move to a condo now that her husband, who used to take care of the house, was in a nursing home. The problem was that she was his court appointed conservator. She had to “petition” the court for permission to sell the house. After eight weeks and almost losing her sale to an eager young family she got court approval and a bill for over $4,000 in court and legal costs.
Single people are especially vulnerable to having large sums of their own money spent on court ordered proceedings. One 85 year old Detroiter, who had frugally saved all his life, was billed over $10,000 in court approved conservator fees to manage and organize his affairs. He had a nephew who was a retired physician who offered to assist but was turned down by the court. Many seniors had their homes sold to pay for court appointed guardian and conservator fees. One wife was informed by the court appointed conservator that she had to spend two thirds of her and her husband’s life-savings on his nursing home bills. The conservator never thought of petitioning the same court for in increase in the wife’s asset allowance.
In short the power of attorney is a simple, affordable wonderful tool for family members to come to the aid of a person in need. If that power is abused there are powerful remedies against those who would try to take advantage of a vulnerable adult.