Varian Law LLC

Do Not Wait for a Health Crisis to Begin Estate Planning

What measures would you like carried out if health issues arise and you cannot speak for yourself?

A very important conversation to have with your loved ones is what you would like for your care should a health crisis arise. While it most likely will not be your favorite conversation, it is important that you don’t put the conversation off until the need for it is created by an immediate situation, according to the Cleveland Clinic in “How to Get Your Living Will and Healthcare Power of Attorney in Order,”

Have your estate planning attorney help you complete advance directives. Remember that each State has its own laws, so work with a local attorney who can create the correct documents. You will want a Health Care Power of Attorney to name an agent, who will make medical decisions when you cannot speak for yourself.  

You also need to have a living will. This will spell out the kind of care you want if you are terminally ill or permanently unconscious. The focus of this document is keeping you comfortable, versus using artificial means to keep you alive. This is also the document to use to express your wishes regarding organ donation.

Talk with your family and loved ones. Critical care doctors often report that when they ask patient’s family members what the patient’s wishes are, few families know. What if you woke up from a car accident, and discovered that you were breathing through a ventilator and could neither speak or move? These are uncomfortable conversations, but in their absence, patients and families are left in worse situations.

You should also talk with your doctors and healthcare providers about your wishes.  It is important for them to have a copy of your advance directives to keep in your medical records. They’ll be scanned and placed in your file. Let them know about your wishes, your values and about end-of-life care concerns.  Your goals may change, so you may need to have more than one conversation. You may want to speak with your family members first, then document your wishes with your estate planning attorney.

Reference: Cleveland Clinic (Oct. 11, 2018) “How to Get Your Living Will and Healthcare Power of Attorney in Order”

Review Your Medical Directives Often

Medical Directives and other estate planning documents need to be kept up to date as the years pass by, according to the Watertown Public Opinion in “Keep medical directives up to date.” If you do have a Medical Directive and haven’t looked at it in years, then it’s time for a review to make sure it still reflects your wishes.

If you don’t have a Medical Directive and an emergency strikes, family members and medical providers have to make decisions without any input from you.

Medical Directives that are out-of-date often become useless. If a family member who was designated to make end-of-life decisions for a spouse is suffering from dementia, they are no longer legally competent to make any decisions.

One way to avoid this is to have an alternate person designated. Your spouse may be aging along with you, and one of you may not necessarily be able to make decisions when they are needed. Be sure that the alternate has the strength of character to make a decision that follows your wishes, even if it is not what your family wants to be done. They have to be able to follow your instructions, which is not always easy.

Just as important as having the documents created is having the conversation among family members about what you want or don’t want. Having that conversation and clarifying wishes will make it far easier for the family member or designated representative, because they will know they are doing what you want. This conversation may give the individual empowered to make the critical decision greater confidence and strength.

While it is (relatively) easier to have these conversations when everyone is in good health, a family member who is scared, grieving and emotionally overwhelmed may find themselves confronted with one of the hardest decisions of their lives.

That’s why it is so important for people to give their family members the clarity and direction they will need, when it comes to end-of-life care decisions. You will need to select a person with a strong backbone, who is not easily frazzled, and check in with them on a regular basis to make sure they can still perform the duties of their role.

An experienced estate planning attorney can advise you on creating an estate plan, or updating an estate plan, that fits your unique circumstances.

Reference: Watertown Public Opinion (Nov. 20, 2018) “Keep medical directives up to date”

Preparing to Care for Your Parents Can Be Difficult

Life starts out with your parents taking care of you, but that scenario changes later in life and you often end up caring for your parents. Sometimes preparing for that situation is easy, but not always, according to Connecticut Magazine in “Senior Caregiving 101.”

The very idea of being in charge of the people who taught you how to tie your shoes and drive a car can be emotional, and many people put off having the talk about caregiving until an emergency presents itself -- and that is not a good plan.  Most of us in our 40s, 50s, and 60s will, at some point, need to be involved in taking care of a parent, including their finances, living arrangements, legal issues and medical care.

Where should you start? Take it one step at a time.

Begin with a conversation about these issues, long before anyone is sick. Getting started while in a crisis will lead to increased anxiety and sometimes outright panic.

If you are worried that your parents or siblings will think you are after their money, think again. How you approach these topics will make the difference. Once a caregiving plan, and legal and financial matters are addressed, you will all feel more comfortable. Start with a simple thought: “I/We want to make sure that your wishes are respected.”

Is there a lot of paperwork? Yes and no. By preparing in advance, you avoid digging through a scavenger hunt for insurance policies and bills and legal documents. Important legal documents include Wills, Powers of Attorney and Advance Directives.  By preparing ahead of time, you will already know where the legal documents are, and you will be free to focus on other important things, such as taking care of and spending time with your aging parents.

It would be a very good idea to meet with an estate planning (elder law) attorney to address your specific circumstances.

Reference: Connecticut Magazine (Nov. 23, 2018) “Senior Caregiving 101”

Parents Should Discuss Aging Issues With Their Adult Children

Some issues are not easy to approach for discussion. However, they are necessary.

With the holidays upon us, it is perhaps a good time to have a conversation with your parents about long-term care and other aging issues, according to News3LV in “Tough talks over turkey: Is it time to have “The Talk” with your parents?”

It is not easy to approach this topic, especially if you have a parent who is not open to discussing the harsh realities of aging. Even if you try your very best to be sensitive, they may still bristle. They may feel like they are too young to be spoken to about these issues, or worry that they will be considered a burden to your family, or that you simply want to get them out of the way.

Here are some tips for these conversations:

Do not wait. It is easier not to have the conversations at all. However, then when an emergency strikes, the family is faced with a series of decisions and missing paperwork. Explore options before a crisis. Let your loved ones get comfortable with the concept of talking about these difficult issues.

It is important to get up to speed with your parent’s health care benefits and their wishes. Do they have the right health care plan in place? Talk with them about the Medicare Advantage plans that are available to help them stay independent longer.

Be sensitive. Let them know clearly that, at some point during their visit, you want to discuss their future. Give that thought time to sink in. You do not want them to get defensive. Remember that talking about aging and death (or “end-of-life”) is difficult for everyone. Decide which topics to dig into and which you can leave for another time.

Be prepared and be specific. What topics do you want to cover and what are the most important ones to discuss first?

Long-term care wishes: do they want to try to live at home? If that is not possible, what would they like? Do they have the ability to pay for an in-home caregiver or would they be better off in an assisted living facility? Could they live with any family members?

End of life decisions: is a living will in place? Do they have a durable power of attorney? Have they thought about what they would like if they are no longer able to communicate their wishes?

Medical coverage: what kind of long-term care insurance do they have, if any?

Listen. Really listen. Hear what they are saying. Listen to their fears and their wishes. Speak in a loving manner and be patient. Let them know you will do the best you can to honor their wishes.

Take a break. If at first the conversation is halting, and they are visibly uncomfortable, it may not be the right day for them. Or, they are not yet able to share their thoughts with you.

Reference: News3LV (Nov. 12, 2018) “Tough talks over turkey: Is it time to have “The Talk” with your parents?”

Decedent’s Estate Held Not Bound By Arbitration Agreement

The Alabama Supreme Court has ruled that the daughter of a deceased dementia patient does not have to submit to binding arbitration with a nursing and rehabilitation center because she did not have the authority to sign the agreement, according to Legal NewsLine in “Alabama Supreme Court: Daughter in wrongful death case didn’t have authority to sign arbitration agreement,”

The woman, Rhonda Stephan, signed an arbitration agreement when her father was admitted to a nursing home (the Millennium Nursing and Rehab center). This is something that many family members do since it is part of many nursing home’s admissions requirements.  However, the Supreme Court said that the woman did not have the power or authority to do so because she signed as a family member and not as a Power of Attorney.  Because of this, when the woman became the personal representative of her father’s estate, she was not bound by the arbitration clause.

By way of background, Stephan, on behalf of her father’s estate, sued the Millennium Nursing and Rehab center for wrongful death following her father’s death in 2015. The facility moved for the enforcement of the arbitration agreement and the Madison Circuit Court agreed when it granted Millennium’s motion to compel arbitration.  Subsequently, the State Supreme Court found that Stephan’s father had been too incapacitated to enter into any legally binding contract when he was admitted, and that Stephan had signed the agreement as a family member, not as a power of attorney.

This case presents an interesting legal issue - if a family member has power of attorney, which is frequently the case, and they sign all the admission papers to have their family member admitted to a care facility, in what capacity are they signing those papers?

If you are serving as someone’s power of attorney, you should consult with an experienced estate planning attorney regarding the responsibilities and liabilities of your role.

Reference: Legal NewsLine (Oct. 30, 2018) “Alabama Supreme Court: Daughter in wrongful death case didn’t have authority to sign arbitration agreement”

Early Stages of Dementia? There Is Still a Future

There can be a future, but plans must be made.

A diagnosis of early stage Alzheimer’s does not mean the immediate end. However, it does mean that plans have to be made quickly, as explained in The New York Times article “Leading an Active Life with a Diagnosis of Dementia.” The article is a story about a busy sales executive’s handling of a diagnosis of Alzheimer’s.

The number of people with Alzheimer’s disease who are 65 and older is expected to soar to 7.1 million in 2025 and 13.8 million in 2050. That’s a significant increase from today, when 5.5 million suffer from the disease, according to the Alzheimer’s Association. Add to that 200,000 people younger than 65 who are estimated to have the disease, and that is not counting those with dementia from vascular disease, Lewy body, and other kinds of dementia.

There is the possibility, however, that people in the early stages of the disease can still pursue fulfilling lives. They must, however, make plans immediately for future care.

The first step is to create a team of professionals, including an estate planning attorney, a physician, a geriatric care manager and a financial planner. Trusted family members should be in on all planning to coordinate and oversee their work.

The challenging legal question is whether a person with a diagnosis of dementia sign estate planning documents? These necessary documents include financial and health care powers of attorney, a Will and possibly some Trusts. Sometimes the person’s attorney may need to seek a clinical evaluation to determine whether the client still has the decision-making skills to permit them to sign documents.

It is necessary to act quickly because most types of dementia progress over time. Having the person evaluated will not preclude anyone from challenging the documents, but it is a strong step in their defense.

A person with dementia is capable of living a very long time with their condition, so Powers of Attorney and Advance Medical Directives should be carefully drafted.  

Planning to pay for long-term care is also an important part of planning for a long life with dementia. For some people, it makes sense to protect assets from long-term care costs. Medicaid, financed by state and federal governments, pays only for people with limited assets.  To help in this complex area of the law, you should seek the help of an experienced estate planning and elder law attorney.  

Reference: The New York Times (Oct. 5, 2018) “Leading an Active Life with a Diagnosis of Dementia”

How Involved Should Children Be in Parents’ Finances?

Adult children of aging Americans are finding themselves caught in a delicate situation of whether they should look into the finances and investments of their parents, according to U.S. News & World Report in “How to Help Aging Parents Manage Portfolios.”

It is not easy to talk with parents about their finances and their vulnerability to scam artists. Today’s thieves are very savvy. They use Facebook and other forms of social media to learn about family members travelling outside of the country, then they prey upon the elderly parents.

Older adults, who are lower in numerical skills, tend to rely on their emotional response in making financial decisions. Loneliness and depression, common in aging seniors, also increase the risk of becoming a victim of a scammer - that is especially so in the case of someone who has recently become a widow or widower.

It is often hard for seniors to discuss finances with their children unless they have done so over the course of their children’s lives.

The biggest problem for many elderly people is the loss of their ability to drive, and that is followed by the inability to handle one’s own finances.  And this problem is only growing as investors live longer.  It only takes a few mistakes for an impact to hit the portfolios and often there is no recourse.

The first step for adult children is to be aware of any signs of mental decline. Just be careful not to jump every time someone cannot find the right word or remember someone’s name. Keep an eye on their behavior - such as a formerly neat person who is now leaving bank statements lying around open on their desk, past-due notices arriving or an extreme amount of mail from questionable charities (versus large nationally-known organizations). This mean it is likely they are having a problem handling day-to-day finances.

But do not confront the issue in a challenging manner. Have a pleasant conversation, possibly starting with a talk about your own finances and how you speak with your own children, or plan to, to get them moving into the topic. Once they are comfortable talking about money, start discussing other important issues, like whether they have a Will, Advance Directive or Power of Attorney.

An experienced estate planning attorney can advise families how to deal with this delicate situation.

Reference: U.S. News & World Report (Oct. 22, 2018) “How to Help Aging Parents Manage Portfolios”

Everyone Should Plan for Long-Term Care

Planning for long-term care can give you peace of mind and protect loved ones from financial challenges.

A recent study reveals that not even half of Americans age 65 years or older have given much thought, if any, to the possibility of needing and planning for long-term care, according to Plan Advisor in the article “Long-Term Care Planning Neglected by Many Older Americans.”

A recent survey from the Harris Poll on behalf of One America asked more than 2,000 adults, if they have had any conversations about long-term care with friends, family members, spouses or partners, health care professionals, financial planners, insurance agents, estate planning attorneys, clergy, accountants or anyone else about preparing for the possibility that at some point they may need long-term care.  Nearly four in 10 people age 65 years and older said they had not. The Harris Poll says this response is similar when asking that same question of younger American adults.

The problem is this: roughly 70% of all Americans can expect, at some point in their lives, to have a long-term care need, according to the U.S. Department of Health and Human Services. For 20% of them, conditions like Alzheimer’s and other forms of dementia, Parkinson’s disease and other chronic conditions will lead to situations where they need long-term care.

Planning ahead for this very likely scenario can make it less of a strain on assets and reduce the burden of care on family members and loved ones.

Not surprisingly, wealthier people are more likely to report having engaged in a long-term planning conversation. However, even of those who do, only a small group have moved forward to have a conversation with a financial planner or insurance agent.

It is important to have these conversations and take the necessary action without delay so that assets can be protected and the correct care can be received without financial pressure.

Asset-based protection is a solution that may be more within reach than most people think. This is a critical conversation to have with the right professionals, especially for people who are near retirement.

An estate planning attorney can advise you on creating an estate plan that fits your unique circumstances, and that can include planning for long-term care.

Reference: Plan Advisor (Oct. 3, 2018) “Long-Term Care Planning Neglected by Many Older Americans”

Which Medicare Plan Should You Choose?

“Medicare programs are not “one size fits all,” so how can you figure out which coverage is optimal for you?”

Trying to unravel the multiple pieces and many options of Medicare could try anyone's patience.  Medicare has multiple components, and some coverage plans contain pieces of several parts of Medicare.  Of course, the companies that sell Medicare Advantage and supplemental coverage will tell you that their product is the best.

You only have a brief window of time to choose your coverage every year. It helps to know what you want before the open enrollment period begins. You should re-evaluate your coverage every year because plans can change annually, and so can your needs.  Medicare programs are not “one size fits all,” so how can you figure out which coverage is optimal for you? Here are 3 tips for choosing a Medicare plan.

1. Learn Your Options

Medicare’s website has a treasure trove of material that explains what “Original Medicare” covers. If you stay with original Medicare (Parts A and B), you might want to buy separate coverage (Part D) for prescription drug benefits. You do not have to stick with original Medicare, though. You could opt for a Medicare Advantage (MA) plan. Some MA plans include drug coverage, but others do not.

The premiums, deductibles, co-pays, available doctors and hospitals and services covered will vary from one MA plan to the next. Whether you buy original Medicare or a Medicare Advantage plan, you might want to purchase supplemental coverage to help pay some of the expenses (like co-pays and deductibles) that your program does not cover. Try to find a coverage package that fits your budget, health status and anticipated future needs. The perfect plan for your neighbor might be all wrong for you.

2. Ask Questions

To make a meaningful comparison between different plans, you need to look at the same factors of each option. Ask questions about these topics for each type of coverage:

• Whether the doctors who already treat you will accept the plan.
• Which doctors in your area accept the coverage.
• Whether the plan limits you to physicians and hospitals in the plan’s network.
• If the plan makes you get a referral from your primary care physician to see a specialist.
• How much your premiums will cost.
• Your out-of-pocket and maximum annual costs for deductibles, co-pays, doctor appointments and hospitalization.
• Whether your prescription drugs are covered and how much your portion of the cost will be.
• Whether the pharmacy you use now will accept the plan, and whether the coverage allows you to get your drugs through the mail.

3. Make Notes

Create your own “cheat sheet” to make your annual evaluations of your Medicare options a breeze. Write down the information you gathered, when answering the questions. Put those notes into a “Medicare Options” folder with a brief explanation of why you chose the plan you did, and why you did not select the other programs.

Next year, the process will be quicker and easier. It is important to realize, however, that the companies can and do make occasional changes to their coverage. Make sure to verify that the information is still current from one year to the next.

The available coverage will be different, depending on the state where you live. Every state also has different laws, so be sure that you meet with an elder law attorney in your area. 

References:

AARP. “How to Choose a Medicare Plan.” (accessed October 6, 2018) https://www.aarp.org/health/medicare-insurance/info-2017/choosing-medicare-plan.html

AARP. “10 Questions to Ask When Selecting a Medicare Plan.” (accessed October 6, 2018) https://www.aarp.org/health/medicare-insurance/info-01-2011/understanding_medicare_your_checklist.html

U.S. Centers for Medicare & Medicaid Services. “Your Medicare coverage choices.” (accessed October 6, 2018) https://www.medicare.gov/what-medicare-covers/your-medicare-coverage-choices

What to Do When an Aging Loved One Won’t Take Your Advice

“In some extreme situations, you might need to talk with an elder law attorney about getting a power of attorney or guardianship for your aging parent.”

Your aging parent makes decisions that you think are not in her best interests. You talk with her about it, but she digs in her heels and persists in the behavior. Even when she suffers adverse consequences, she stubbornly continues, as if to spite you. Sometimes you may wonder who is the parent and who is the child. Experts have some advice on what to do when an aging loved one won’t take your advice.

Oops, I Did It Again

Your older parent repeatedly does something that makes you wonder what he was thinking. You have talked with him about this before and he knew better. Nonetheless, he did what he wanted again and you had to pick up the pieces.

Let’s say your parents decide to move 1,000 miles away from you to a two-story house, even though they have fallen several times. They are in their eighties and have multiple health issues that make them medically fragile, yet they refuse to accept outside help. Every time one of them falls and ends up in the hospital, you drop what you are doing and jump on an airplane to help. If they would move into an assisted living center near you, things would be better for both them and you. However, they refuse to do so.

Try to Figure Out the Motive

There are many potential reasons why an aging parent might behave like this. Some commons motivations in this situation are:

• She is trying to prove that she is still independent. Even making the wrong decision can feel gratifying to a person, who feels she is losing control over her life. If you have become over-controlling, your parent might want to push back. Make sure you do not treat your aging parents like infants. They did manage to rear you and took care of themselves for many decades without you telling them what to do.
• He wants attention. Elderly people are often lonely. If one of your parents dies, do not be surprised if the surviving parent expects you to fill the gap of missing attention, whether he is aware of this assumption or not. If he does not get as much of your time as he wants, he might escalate things and do something careless. If this behavior results in him getting injured, you will rush to the hospital and he will get the attention he desires.
• She has always behaved like this, but she used to be able to deal with the consequences by herself. Now that you have to step in, you realize how disruptive her choices can be.
• He is experiencing cognitive decline. He might not be making poor decisions intentionally. He might be suffering the ravages of time, or be in the early stages of dementia.

How to Keep Your Aging Parent’s Choices from Over-Stressing You

Dealing with difficult people can be a challenge. If understanding the cause of the behavior does not help to solve the problem for you, consider these strategies:

• Pick your battles. If you are not likely to care about it five years from now, just smile and ignore the behavior.
• Try a guilt trip. If the issue is critical and nothing else works, use a good old-fashioned head game, such as encouraging your parent to quit smoking for the sake of the grandchildren.
• Shrug your shoulders. Your parents are adults. They have the right to make their own choices, even if you do not agree with them. Accept the fact that sometimes things will go wrong and all you can do is love them. Realize that, at the end of the day, the only behavior you can completely control is your own.

In some situations, you might need to talk with an elder law attorney about obtaining guardianship over your aging parent.

References:

A Place for Mom “8 Expert Tips for When Aging Parents Won’t Listen.” (accessed September 28, 2018 https://www.aplaceformom.com/blog/2-25-15-expert-tips-when-parents-wont-listen/