ElderLaw Answers Blog

 It’s only a little over a month until we leave the 2000s and enter the 2010s.  We never came up with a good name for this first decade of the millennium, but it’s certainly been eventful, starting with millennial fears about computer meltdowns, continuing through 9/11, two wars in Afghanistan and Iraq, and a global financial meltdown.

Many of us who got into elder law when it was young are now part of a mature specialty with more competition than ever.   And we’re more mature as well.  I see many more gray hairs and wrinkles at NAELA meetings, but also many fresh faces as newer attorneys join the field. 

What’s the French saying?  Plus ça change, plus c’est la même chose — the more it changes, the more it stays the same.  Not sure if that’s true in elder law or the world at large, but it’s better than the supposed Chinese curse, “may you live in interesting times,” which definitely applies to this past decade.

What will happen in the next decade?  Have Americans become savers?  Will we adopt a more European-style health system?  Will we withdraw from Afghanistan and stay closer at home in the future? 

We’ll only know in retrospect whether the end of the year simply means we add a numeral 1 to the calendar or, switching back to French, it’s the fin de siecle — the end of an era — and we’ll see big changes in the coming years.  One marker will be whether the CLASS Act remains part of the health reform bill.  This would be the first step by Congress to truly address the long-term care needs of Americans and would be a fitting legacy for Senator Kennedy, who was one of its strongest proponents.

Hospitals are overwhelming, scary places typically run for their own convenience, not necessarily that of patients.  Information is often difficult to come by.  Given the different shifts nurses and doctors have and the schedules of family members visiting ill relatives, it is often difficult or impossible to get a complete and accurate picture of a patient’s condition and treatment.

Forunately, Dr. Gail Gazelle, has written a short and usable pamphlet that patients and family members can use to achieve the best outcome from a hospital stay.  Titled Don’t Leave the Hospital SICKER Than You Went In!: A Doctor’s 106 Tips for a Healthy & Safe Hospital Experience, it is available at Dr. Gazelle’s Web site, www.MDCanHelp.com, for $6.97.

Dr. Gazelle, who counsels everyone facing a hospitalization to enlist an advocate, works as a patient advocate in the Boston area.

After Brooke Astor’s son, Anthony D. Marshall, was convicted of exploiting and defrauding his mother, we asked our viewers on the ElderLawAnswers site whether they felt he should serve jail time by being sent to jail.  By a three-quarters vote, they say “yes,” he should go to jail.

The tally continues, so if you’d like your vote to be counted on this issue, click here.

The conviction of Anthony D. Marshall for the financial exploitation of his mother, Brooke Astor, as her physical and mental health declined in her late years puts in sharp relief what is often unclear when elder abuse is claimed against family members.  What’s a gift, what’s payment for services, what’s theft, and what’s undue influence are often difficult to determine in the murky world of family relationships.

As a result, it can be difficult for prosecutors and others to decide for certain that financial or physical elder abuse has occurred and to bring charges against the accused family members.  The result is that few cases are brought in these situations.

The Astor case demonstrates that prosecutions for elder abuse are not impossible and may encourage more prosecutors around the nation to bring similar actions.  This should serve as a warning and, we hope, a deterrent to those who may take advantage of their older family members. 

It also means that those who are caring for family members should make sure that they are not wrongly accused of elder abuse.  If they are to receive payment, gifts or an inheritance in exchange for the care they provide, this must be documented.  It is better that it be documented by an independent attorney and that all family members are aware of the arrangement so no disgruntled heirs come forward and make trouble in the future.

To read more about the Astor decision, click here.

The  Natonal Center for Health Statistics  of the Centers for Disease Control and Prevention reports that life expectancy of Americans at birth reached an all-time high of 78 in 2007.   This ranks us 35th in the world, right behind Portugal and Ireland.

Women do better than men with a life expectancy of 80 years as opposed to 75 for men, and whites do better than blacks, whose life expectancy at birth is only 73 years. 

However, according to the report “Deaths: Preliminary Data for 2007“ it’s black men who do the worst.  Their life exectancy of 70 is seven years less than black women, whose life expectancy of 77 is higher than white men’s life expectancy of 75.

Alzheimer’s disease moved up from the seventh to the sixth cause of death between 2006 and 2007.  However, it is dwarfed in numbers by the two leading causes of death, heart disease and cancer.

While this information is interesting, it leaves a lot out.  Is life expectancy increasing because seniors are living longer or because more people are making it to their older years?  What is the life expectancy of people at age 65?  Are these extra years good years, or are they spent ill and demented?  Do the discrepancies between men and women and between whites and blacks apply equally at all ages?  For instance, are men and blacks (and especially black men) more at risk of death when they are young, or do those who survive to middle and old age also die so much younger than women and whites?

Nicholas D. Kristof, in a recent column in The New York Times, “Until Medical Bills Do Us Part,” writes about a friend — “M” – who has been advised to divorce her husband so that she will not be impoverished paying for his anticipated long-term care needs.  She was advised to do this by a social worker at the hospital where her husband’s degenerative condition was diagnosed.

This is a second marriage for both M and her husband and they have a prenuptial agreement, which is irrelevant to issues of Medicaid eligibility.

Kristof decries a medical system that forces people to divorce “not because of irreconciliable differences but because of irreconcilable medical bills.”  We could not agree more.  This is the sad reality of our dysfunctional health care and long-term care system.

Another sad reality of our system and M’s situation, however, is that M has been getting bad legal advice.  First, in  any second  marriage in addition to a prenuptial agreement, clients should be advised to purchase long-term care insurance. 

Second, in terms of divorcing for Medicaid planning purposes, it sounds like M was getting legal advice from social workers rather than elder law attorneys.  Divorce is certainly an option, but it is not the only long-term care planning strategy available to clients.  In more than two decades of practicing elder law, not one of my clients has sought divorce for Medicaid planning purposes. 

Another sad reality of our dysfunctional system, is that citizens need qualified elder law counsel to navigate it relatively unharmed.

Why is it that opponents of health care reform prefer scare tactics and disruption to honest debate on the issues?  A case in point is the claim that the bill would encourage seniors to commit suicide.  Not true.

The House version of the bill would provide seniors the option of consulting with their doctor on “advance care planning” every five years to discuss their preferences should they become seriously ill. 

Dr. Muriel R. Gillick in a column in today’s Boston Globe explains that while most seniors say that they would like to have end-of-life consultations with their physicians — 89 percent according to one poll — very few actually have such discussions — just 17 percent in the same poll.  Why not? 

The reason is that doctors say they don’t have the time, and they don’t have the time because Medicare does not pay them for having such discussions.  All the House bill would do is to authorize payment for such important discussions between physicians and their patients.  As Dr. Gillick explains:

• The reason it is important to have the conversations is that death is not optional.  What is optional is how we will experience life’s last stage:  Will we be in an intensive care unit or enrolled in hospice?  Discussions about end-of-life care have been shown to result in patients experiencing less depression, less pain, and less anxiety in their final days.

Why do opponents of health care reform distort the facts to deny this care to America’s seniors?

Last week, I interviewed Suzanne Mintz, President and CEO of the National Family Caregivers Association.  She had a wonderful suggestion for all families with aging parents: hold family conferences, both to plan for the future and in the event of an illness or disability.

All too often, misunderstandings occur due to different family members having different and incomplete information.  Often, some family members feel overburdened and are afraid to ask for help or don’t know what they can expect from siblings and other relatives.  Ms. Mintz recommends taking the following steps:

• Meet while everyone is healthy so that everyone can plan ahead and get proper estate and financial planning in place.
• If a crisis occurs, meet to share information and expectations and to divvy up responsibilities.
• Prior to the meeting, everyone should compile a list of what they want to learn and what issues they would like to cover.
• Prepare an agenda in advance.
• Meet in person if possible.  If not, use conference calling or video solutions.
• Use a facilitator, usually a geriatric care manager or an elder law attorney.  But it’s possible that family friends or clergy can serve this role.
• Write down and share any decisions that come from the meeting.
• Hold as many meetings as necessary.

By taking these steps, a lot of misunderstandings can be avoided and no single family member needs to feel entirely alone and overwhelmed.

As The New York Times describes in a recent article, the litigation over Brooke Astor’s estate and will is far from unique.  Where there’s money, there are people who will use improper means to grab it.  Where someone has dementia or is dependent on others for care and companionship, they may be induced to alter their estate plan. 

Where a family member feels scorned for  being left out of the will or left out socially, she may suspect undue influence where none exists.  It can be psychologically necessary to believe that Mom was tricked rather than accepting that Mom loved you less or that some long term resentments were reflected in the will.

All of this can lead to litigation which can be expensive both financially and emotionally.  In most cases, good lawyering can prevent such litigation, but not always. 

Our firm is involved in a case where a woman left everything equally to her seven children.  There’s no dispute over the finances.  But the mother owned antiques, jewelry and other items of financial and sentimental value.  She left a list saying who should receive what, which is what attorneys advise clients to do, and the executrix worked out a system for distributing what wasn’t on the list.  Yet one daughter is challenging both the list and the system, which has led to considerable expense and delay.

In short, the best laid plans can avoid a lot of problems, but some may be unavoidable.

Mediation, which has been increasingly used to resolve business disputes and in divorce, has been increasingly used in family disputes around elder care issues.  These disputes can arise among children who have different views about the care a parent needs and how their financial resources should be spent and between a parent and children when the children believe that the parent needs assistance and the parent disagrees or cannot give up control.

If these disputes go to court, typically in the context of a guardianship proceeding, ususally no one wins (except perhaps the attorneys who can end up spending a lot of time and charging large fees).  If the parties are willing — a big if — these disagreements can often be resolved through mediation in a way that is quicker, cheaper and somewhat gentler on the participants feelings than litigation over guardianship.

National Public Radio recently featured our friend, Rikk Larsen, of Elder Decisions in a program on this topic.  You can listen to it by clicking here.

Our problem, despite our believe in mediation as the best method of resolving disputes, is that all parties must be willing to come to the table to make mediation possible.  Often not everyone is willing.