ElderLaw Answers Blog

It is not unusual for family members to become dangers to themselves and others when they begin to lose their prior abilities.  This may be due to their inability to drive safely or their susceptibility to financial scams.

This can put family members in an awkward position.  They want to protect the senior and, in the case of driving, others.  But a confrontation can cause serious problems.

Some possible responses to this type of situation are discussed in an article in The Wall Street Journal, in which I am quoted, and in a new blog I have started writing on the Care.com web site.  Take a look by clicking here and here.

Our most recent survey on the ElderLawAnswers website asks whether users favor job creation or deficit reduction.  Almost 60 percent favor deficit reduction.

Of course, the survey question by necessity over-simplifies a complex issue.  Most everyone would like to have both job creation and deficit reduction.  And, in the long run, deficit reduction may improve the health of our economy and contribute to greater employment.

Most economists argue that it makes sense to run deficits in times of recession in order to boost the economy, but that the long-term commitments facing our government are unsustainable.

Finally, where agreement generally falls apart has to do with the question of how deficit reduction should be accomplished, whether through budget cuts or tax increases.  And even if we agree on a mixture of the two, there’s little hope for agreement on which items to cut and whose taxes to raise.  No wonder there’s gridlock in Washington!

While Medicaid is the primary payment source for nursing home coverage throughout the United States, its coverage of assisted living facility care is much more limited.  It varies from state to state and from facility to facility, making it difficult for seniors and family members to plan.

This is the result of a number of factors, including state Medicaid agencies’ efforts to restrain spending and the desire on the part of the assisted living industry both to charge higher fees to private-pay patients and to avoid the greater regulation that would come with expanded coverage.

Yet, most seniors would prefer to live in assisted living if possible and to the extent Medicaid-covered nursing home residents could be cared for in lower cost assisted living facilities, the states would save money.

The National Senior Citizens Law Center has issued a White Paper on Medicaid Payment for Assisted Living: Current State Practices and Recommendations for Improvements which describes the current situation and proposals for making Medicaid coverage of assisted living available to more seniors.

Read the report by clicking here.

Advanced age, unfortunately, is often accompanied by dementia, whether from Alzheimer’s disease, strokes, small and large, or any of a number of other illnesses. By some measures, half of those over 85 suffer from dementia. The more severe the dementia, the more assistance seniors need getting through the day.

Seniors with dementia can also be at great physical and financial risk due to their own bad decisions and their susceptibility to abuse, again either physical or financial. Depending on the situation, protecting seniors with cognitive impairment, as well as those around them, can be difficult.

What can family members do when a parent should stop driving, but refuses to do so? What if they respond to every telephone solicitation that comes their way? What if they refuse help in the house or resist moving to an assisted living facility?

In many instances, seniors can be cajoled to do what’s best for them. But not always. In such cases, there is the legal remedy of guardianship. Unfortunately, as we shall see, the law can be a blunt instrument.

Every American has the right to determine where she will live, who can come into her home, and how she will spend her money. This personal autonomy can only be taken away by a court determination that an individual is so impaired that she will be injured unless someone is appointed to step into her shoes and make decisions for her.

What is Guardianship?

The person appointed is named either a “guardian” or “conservator” depending on the state’s nomenclature and rights transferred. In many states, a “guardian” is appointed to make personal decisions, such as where the protected person will live and what health care she will receive, while the “conservator” makes financial and legal decisions. The two roles can be filled by separate people or by the same person.

Guardianship proceedings are problematic on a number of levels.

• They take away the protected person’s rights – he can no longer make decisions for himself.
• He is declared to be incompetent, which can be hurtful.
• There is the cost of hiring attorneys and doctors to get through the process.
• The protected person’s situation and finances become part of the public record and the guardian and conservator must make annual reports to the court.
• Finally, depending on the state, many financial and estate planning steps that may be advisable can only be taken with court approval, which causes delay and increases legal fees.

Most states’ laws permit guardianship or conservatorship appointments to be tailored to transfer to the appointed person only those rights needed to make sure the senior is protected. Yet, in most instances no one takes the trouble to do this and the appointment is “plenary”, meaning all rights are taken away from the senior.

Avoiding Guardianship

So, if guardianship and conservatorship are so bad, why does anyone use these procedures? The answer is either because there is no alternative or due to lack of planning.

Often, guardianship and conservatorship can be avoided through estate planning while the senior is healthy and competent. By appointing personal representatives through durable powers of attorney, health care proxies and trusts, an individual can choose who will make decisions for him when he is no longer able to do so. This can avoid family disputes and the cost and delay of guardianship proceedings. It can also give the appointed person more freedom to take the appropriate steps to protect the senior.

Nevertheless, even with proper planning, family members sometimes have to resort to the courts. This is often the case when the senior has become obstreperous and is putting himself or others in danger, or when a third party is unduly influencing the senior. In those instances, going to court may be the only solution.

In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in part to protect the privacy of patient records.  As with most laws, the results have been both good and bad.  Medical providers have become more careful about preserving patient confidentiality, but sometimes to the detriment of open communication with family members who may be able to provide important information to doctors and other health care providers.

In response, many estate planners have begun including HIPAA releases in their documents for clients so that medical personnel will communicate and share information with designated individuals.  These might be included in health care proxies or powers of attorney, or be separate documents.

Some, however, have argued that such releases are unnecessary since health care proxies and powers of attorney already provide the appointed agent access to medical records and personnnel.  This is true as is explained on the  Health and Human Services website as follows:

Generally, a covered health care provider or health plan must allow your personal representative to inspect and receive a copy of protected health information about you that the covered health care provider or health plan maintains….
If a person can make health care decisions for you using a health care power of attorney, the person is your personal representative.

Some have argued that to include a HIPAA release in a health care proxy or power of attorney serves to reduce the authority of the appointed agent, making it appear that they only have authority to receive information and undermining the state grant of power to make health care decisions for the incapacitated patient.

In our practice, we haven’t seen this result.  We have more often seen health care providers refusing to communicate openly with family members, in some instances even refusing to receive information they may provide, which was never the purpose of the HIPAA legislation.  The HIPAA release prevents doctors and others from avoiding family members. 

In fact, while we include it in our health care proxies, we also have clients sign a separate release naming the health care agent as well as anyone else the client may wish to be able to communicate with medical providers.  While only the appointed health care agent may make health care decisions, anyone under the HIPAA release may then communicate with doctors, nurses and therapists as appropriate.

The Administration on Aging, along with a number of non-profit organizations, has created a new legal resource web site that is available to consumers, attorneys and advocates alike.  It is a good starting point for anyone researching the legal rights and benefits of older Amercians.  You can reach the new site by clicking here.

Essentially a compilation of information provided by the Center for Medicaid and Medicare Services (CMS) on its Nursing Home Compare site, U.S. News & World Report has released a ranking of nursing homes.  Will the data is based  on data compiled by CMS and state regulatory agencies, the US News web site presents the information in a usable format and accompanies it with useful articles on choosing nursing homes.

It also lists the 11 nursing homes out of more than 15,000 nationwide which received perfect ratings for the past four quarters.  While the ratings may be questioned as the sole measure of the quality of nursing home care, there’s definitely a significant difference between the top-rated and bottom-rated facilities.

Click here to go to the US News nursing home ranking.

In a letter written to Senate Majority Leader Harry Reid, Congressional Budget Office Director Douglas W. Elmendorf estimates that the Community Living Assistance Services and Supports (CLASS) provisions of the health reform bill would save the federal deficit by $72 billion over 10 years.

The CLASS Act, which could be Sen. Ted Kennedy’s final legislative accomplishment, would provide basic long-term care insurance for every American who chose to participate.  While a voluntary program, taxpayers must opt out of it rather than choose to sign up.  Policymakers predict that many more people will participate than would if they had to take an affirmative step to participate.

In a recent column, journalists Steven and Cokie Roberts explain why the CLASS Act deserves support as a first step twoards solving the long-term care crisis facing our nation as the baby boomers age.  While the program will bring in more money than it spends at first, it will eventually cost more than it raises.  “But even if it did,” the Roberts argue, “it would be no worse for taxpayers than what’s happening right now. We are paying about $100 billion a year for long-term care through Medicaid, and that number is going to go geometrically higher if no other provision is made for people who need help. How can forcing people into poverty so the government can pay for them be better than setting up a program where workers pay for themselves?”

In Massachusetts, several accidents earlier this year caused by older drivers has spurred the legislature to consider requiring all drivers to take regular testing after age 75.  While this could make the roads safer, few have discussed what it means for seniors to give up their car keys.

Unfortunately, as a nation we’ve created a transporation infrastructure based on the automobile.  The inability to drive can lead to a loss of independence, isolation and depression.  According to one AARP study, nearly half of adults 50 and over said roads near their homes were unsafe to cross and that they would walk, bicycle or take buses if it were safe to do so.

Other studies have found seniors who give up the licenses to be more depressed, to take part in fewer out-of-home activities, and to be more likely to require long-term care than seniors who keep driving.  The Boston Globe in an article on the topic reports on an innovative program where volunteers drive seniors in their cars.

While helpful, such programs won’t solve the real problem of bad transportation planning.  To keep the roads safe and to permit seniors and others to maintain their independence, we need a massive program to change transportation policy to provide for safe walking and bicycling and to offer all Americans better mass transportation options.

The Illinois Supreme Court in an interesting case, In re Estate of Feinberg, upholds the estate plans of Max and Erla Feinberg who provided bequests to their grandchildren, excluding those who marry “outside the Jewish faith (unless the spouse of such descendant has converted or converts within one year of the marriage to the Jewish faith).” 

At the time of Erla Feinberg’s death, only one of her five grandchildren had married within the faith and two of her other grandchildren challenged this restriction.  They argued that it violated the state’s interest in upholding marriage and the U.S. Constitution’s restrictions on state involvement in religion.

The trial and appellate courts agreed with the grandchildren challenging their grandparents’ estate plan, but the Illinois Supreme Court does not.  In upholding the restriction, it reconciles two state interests in conflict in this case:  marriage and the right of testators to determine who will receive their property.

The Court threads the needle in this case by distinguishing between conditions “precedent” and conditions “subsequent,” upholding the former and disallowing the latter.  It approves the Feinbergs’ plan since it simply defines the class of people who may receive a bequest — those who happen to married to spouses of the Jewish faith at the time the survivor of them passes away. 

There may well have been a different result if the plan had also offered a bequest to those grandchildren who divorced their non-Jewish spouses within a year of the death of the survivor of Mr. and Mrs. Feinberg.  That would have been an “attempt to control the future conduct of the potential beneficiaries” as opposed to a reward for “those grandchildren whose lives most closely embraced the values [Erla] and Max cherished.”

In terms of the free exercize of religion clause of the U.S. Constitution, the Court finds that it does not apply since the Feinbergs are not government actors.  It finds that it “does not require a grandparent to treat grandchildren who reject his religions beliefs and customs in the same manner as he treats those who conform to his traditions.”

In short, testators can use any criteria they choose in deciding who will benefit from their estates.  Limits, however, may be placed on steps they may take to to control their beneficiaries’ actions after they (the testators) have passed away.