Tuesday, December 1, 2009

Biggest Razorback Fan Contest

If you have received this month's newsletter, you may have seen an article on the back page called the "Biggest Razorback Fan Contest". If you would like to enter a picture in that contest, just send your wildest picture of you displaying your Razorback pride. You can send it to me at doug@arkelderlaw.com. We will post the winning entry's in our next newsletter and on this blog next month.

Friday, November 27, 2009

I'm Thankful for Alzheimer's Caregivers

Today I visited my brother and his wife in Hot Springs. This was not your typical Thanksgiving holiday type of visit. Johanna is a resident at a nursing home in Hot Springs – she has Alzheimer’s. The facility where she is residing is providing great care. My brother is very thankful for the care that Johanna is receiving and for her caregivers.

My visit today caused me to reflect on all of the people and things in our lives that we should be grateful for. My visit also caused me to think about all of the caregivers out there - whether professional caregivers, family members or volunteers, who are quietly working in the trenches every day to make the life of an Alzheimer’s patient just a little better. For all of these caregivers, I am very thankful. If you know a caregiver, visit them today. If you have the time, sit with their loved one for a little while to give the caregiver a brief respite. And tell the caregiver that you appreciate what they are doing. They are doing their part to make the world a better place.

Sunday, November 15, 2009

Time Out Workshop - Pictures

Here they are at last - pictures of the 2009 Time Out Workshop. As you will see by looking at the pictures, fun was had by one and all. It would take more than a little rain to dampen the spirits of participants.
To see the Time Out Workshop pictures (maybe one of YOU), click on the Facebook Button on the right side of this page. If you have pictures from this day, e-mail them to us and we'll post them.
Remember, the next Time Out Workshop will be called, Alzheimer's 360 - and will be Co-Sponsored by Alzheimer’s Association, Arkansas Health Care Association and The Elder Law Practice of Douglas R. Jones and Cynthia Orlicek Jones.

The guest speaker will be Teepa Snow - you don't want to miss this!!! Save the dates of Jonesboro, Monday, March 8th and Little Rock, Tuesday, March 9th. Watch for more details coming soon.

Doug & Cindy

Friday, November 13, 2009

Dying Decisions – It’s a Good Thing

This may seem to be a strange blog post title, but we all know that death is part of every life. And making a decision in advance as to how you want to die and what treatments you want to receive is usually a good thing. As Elder Law Attorneys, we often are called to assist people and their families toward the end of their life. We have found that families that have had the “dying discussion” with their loved one experience much less stress (caused as a result of wondering whether we’re doing the right thing) than families who have not done so.

Having the talk with your family is crucial. There is no substitute from hearing it directly from Mom or Dad or your Spouse what they want when the time comes. However, talking is not enough. You need to have signed proper legal documents that reflect your directions. In this blog post, we are going to discuss two health care documents necessary to carry out your last wishes - Private Living Will and Do Not Resuscitate (DNR) Order.

A Private Living Will is a legal document in which you can state what medical treatments or interventions you want to receive in an attempt to prolong your life. You can be specific, stating whether you want a particular treatment, or you can leave the decision up to your doctor or person that you have appointed to make health care decisions for you.

I would caution you to not be too specific or you could be “hung by the tongue”. There is an infamous case where a man stated that he did not want hydration (liquid) when he was in the process of dying. When he was later dying with cancer and was in a lot of pain, the medical team determined that they could not give him morphine to dull the pain because of his wish not to receive “hydration”.

The standard language of a Private Living Will in Arkansas states that the “attending physician” may “withhold or withdraw” treatments that only prolong the process of dying. However, most attending physicians that I have met do not want to have to make this decision. It is much better practice to also have a clause in your Private Living Will which appoints a family member as your health care surrogate. In this case, the doctor will state that the person is terminal or irreversible - then the family member can decide what actions to take, based on your written instructions and your prior discussions with them.

By comparison, a Do Not Resuscitate (DNR) Order is a written order by a patient’s attending physician that prevents CPR in the event of cardiac or respiratory arrest. Arkansas provides for recognition of DNR orders by emergency personnel such as EMS workers and hospital emergency room staff. A person can request that their doctor issue a DNR order or they can make this request in their Private Living Will.

This is not an easy issue and is not a discussion that a family wants to have. However, I will promise you that (after the fact) this is a discussion that families are very glad that they had with their loved one while they had the opportunity to do so.

Friday, October 23, 2009

Health Care Power of Attorney

Many of you have personal experience with a loved one in a hospital during their final days or months. If this person has not prepared a Health Care Power of Attorney, who will make health care decisions for them if they are not able to make their own decisions? That is a good question… Many times doctors and hospitals are placed in an impossible situation by the people they are caring for and their families. The hospital and doctors are required to provide necessary care to those who are in their charge. However, if the persons they are treating cannot speak for themselves and do not have adequate health care documents, then no one can make legal health care decisions for them. This situation becomes much worse in cases when there is disagreement among family members.

A Health Care Power of Attorney should be a document that covers only your health care decisions. I see health care provisions “tagged onto” a property power of attorney, but feel that this is a bad idea for the following reasons: (1) There is a separate body of law governing health care powers of attorney under Arkansas law, the "Durable Power of Attorney for Health Care Act" (A.C.A. § 20-13-104) Durable property powers of attorney are governed by A.C.A. § 28-68-201. Therefore, the provisions should not be morphed together in one document; (2) The documents are prepared for totally different uses – one for the medical community and one for the financial community. For privacy and convenience reasons, they should be separate; (3) It is very common to state that, in the event of an incapacity, one individual or entity shall make financial decisions for you and a separate individual or entity shall make health care decisions for you – again, this should be done in separate documents.

It is important to decide which family member or friend that you wish to appoint as your health care attorney-in-fact and have a discussion with him or her to make sure that they are able and willing to carry out the decisions that you would like to have made on your behalf if you are not able to make them yourself. This is not an easy discussion to have, but it is important to make sure that this person is comfortable with the decisions that they are being asked to make on your behalf and will be willing to do so when the time comes.
It is also very important to name a back-up. Many times, people only name their spouse or one child. If you were in a car wreck and that one person was with you, your appointee would not be able to act. For this reason, you should not only appoint a back-up, but you should also have “the discussion” with an adult child or friend who could fill-in if your first choice is deceased or unable or unwilling to act.

Sometimes people want to name all of their children as co-health care attorneys in fact. Although this can legally be done, it’s probably not a good idea. If the agreement of all children are required to make a decision and one doesn’t agree or is out of town, there will be a stale-mate. Additionally, if time critical health care decisions need to be made, you don’t want a committee meeting. It’s important that, if available, all children discuss this issue, but in the end, the decision should be made by one family member or friend.

As you can see from this brief discussion, appointing a health care decision maker is critically important. Do yourself, your family and the medical community a favor by setting an appointment with your estate planning attorney to do a proper health care power of attorney.

Saturday, October 17, 2009

Hospice Planning

In a prior blog post, (Life Care Planning – Bridging the Gap), I told part of the story of the journey of Mom’s stroke and ultimate death. In this post, I tell the rest of the story. Even though I had practiced Elder Law for 20 years and had advised many people about the legal process, when my own Mom had a stroke on January 1, 2005, I felt helpless. When it’s your parent or your spouse, it’s different. You need help.

After her stroke, Mom was in a hospital for several weeks, then was discharged to a skilled care nursing home. Even though the nursing home that she was in provided good care, she was not getting any better. As a matter of fact, every few months she was taken back to the hospital for a week or so to kill off new infections that had developed.

At the end of her last hospital stay, a nurse pulled me aside and asked me whether I had heard about hospice. I said that I had and was reluctant to seriously even think about it – I felt that by placing her in the care of hospice, I was giving up on her. Only later after she had received hospice care for a while did I find out how wrong I had been!

Hospice not only provided excellent care for my Mom during her last few months on earth, but they helped me through it as well. Watching a loved one die is not easy. Hospice can help. If you or a loved one needs hospice care, give them a call. They may be able to help more that you know.

But the rest of the story is that you can help too. By having adequate health care documents (discussed in next blog post) and other estate planning documents, you can take the legal and emotional load off your family. It is difficult and sometimes impossible to make health care decisions for a person who has not planned adequately. Adequate estate planning may also preserve assets for the benefit of a surviving spouse or children. The key is to do it before you need it.

Many time people have told me that “My kids know what I want.” That may be true – but unfortunately, unless you have proper legal documents, spoken words are not good enough. If you haven’t done proper planning, give us a call before it’s too late. But if you have a spouse, child or other loved one who has not planned and is receiving hospice care now, call us anyway. We can often make a substantial difference even when time is not on your side.

Thursday, October 15, 2009

Time Out Workshop - The Day After

Actually, this is Thursday, 2 days after - but since I was in a post-workshop haze yesterday, that doesn't count. At any rate, this year's workshop was fantastic. I say this not because of anything that we did, but because of the following groups of people:

1. The Attendees - Despite the rain (especially the down-pour that happened when most were arriving), all attendees arrived on time with a cheerful, expectant attitude. Whoever said that "attitude is everything" had it right. The attendees made the day. I hope they gained as much as they gave.

2. The Speakers - What can we say, but WOW! What a great job. I knew what attendees thought of the presentations before I even reviewed the evaluation sheets. The speakers had "Hit one out of the park!" This year's speakers were: Dr. Neal Wyatt, Dr. Morgan Sauer, Carol Randolph, APN and Dr. Kim Curseen.

3. The Vendors - This year we had 15 terrific vendors. Most arrived the night before to set up and arrived early the day of the workshop. They did a great job of interacting with participants and generally made for a great time. If it were not for the sponsorship, input and effort expended by our vendors, this workshop would not happen.

This year's vendors were: Home Instead Senior Care, Home Care Professionals, Catlett Care, Alzheimer's Association, Arkansas Hospice, Baptist Health Rehabilitation Institute,
Presbyterian Village, Inspirations, Senior Care at Harris Hospital, Stonehaven Assisted Living,
Arkansas Health Care Association, Convacare, Amedisys Home Health, Life Care Advocates and Fox Ridge Assisted Living Communities.

Cindy & I extend our heartfelt thanks to each member of the above three groups. You made it happen and we are very grateful! Thank You!

Saving the Farm - Part 2

In our last blog post, we discussed the need to plan ahead to protect major assets, often called “Legacy Assets” that people have inherited from their parents, and wish to pass down to their children. This type of planning, which is often called “Succession Planning” is desirable as a tool to ensure that the assets seniors have inherited or have accumulated through their hard work and labor goes, at death, to their loved ones and is not eaten up during life or death by either attorneys fees, probate or taxes or the costs of long term care.

Why do Succession Planning? Most seniors are concerned with the dual goal of providing for their children, grandchildren and other loved ones while also protecting their assets from being spent down for long term care. Succession Planning gives seniors the peace of mind in knowing they can accomplish these goals.

Succession Planning is accomplished by the use of a special type of an Irrevocable Trust. The primary purpose of the trust is to help achieve the client’s estate planning objectives. Often a trust is the central mechanism required to pass your assets to the people you want, when you want and how you want – all while maintaining control and protecting assets in case of catastrophic illness or need for long term care.

After meeting with the family and determining their estate planning goals, we set up an estate plan that helps the client achieve their goals. Although all families are different, the things that most people have in common are the following:

1. They want to protect their surviving spouse (if they are still living)
2. If anything is left at the second spouse’s death, they would like everything to go to their children
3. They want to keep Legacy Assets in the family.
4. If they establish a Trust, the senior would like to (a) retain income for life; (b) establish controls over how the funds are spent; (c) choose the trustee that controls the money and property.
5. If a trust is established, they would like for the trust to avoid risks associated with the children, such as creditors, bad marriages etc.
6. They would like for their family to receive any significant tax advantages to putting the money in a trust rather than outright transfers.
7. After the 5 Year-Look-Back Rule, the senior would be eligible for Medicaid.

By following this plan, seniors position themselves to ensure that the assets they have accumulated though their hard work and labor goes, at death, to their loved ones and is not eaten up during life or death by either attorneys fees, probate or taxes or the costs of long term care.

Sunday, October 11, 2009

Saving the Farm - Part 1

In our last blog post, we were discussing the concept of asset protection, or as it is commonly asked, “How do I keep the Nursing Home from taking Momma’s farm” (or house, or money or whatever).

As we mentioned in that blog post, the Nursing Home doesn’t have the power to “take” anything. When you move into a Nursing Home, you are really just renting a room with nursing services included. If you rented a room for a night at your local Holiday Inn, the issue of “will I have to pay this” would never come up. You would know up front what the cost was and you would know that you had to pay for the room if you were going to stay there for a night.

The owner of a nursing home is like the owner of the hotel – he just wants to be paid for the room. He knows that there are 3 primary ways he will be paid: (1) If Mom goes to the hospital first, stays there for at least 3 nights, then is discharged to the Nursing Home, Medicare will pay for up to 100 days (see separate blog post on Medicare Qualification); (2) After Medicare runs out, the resident will “private pay” meaning personally pay for the room out of their pocket until they have spent much of their money or other assets . (See separate blog post on Medicaid Qualification); (3) After they have paid most of their money to the nursing home for rental of a room, and otherwise qualified, they Medicaid will start paying the nursing home bill each month.

Now, all of that was a pre-curser of what we’re talking about today, which is how to I protect what I’ve got so I don’t have to spend it all down to get Medicaid. The answer is to plan ahead, meaning - do your estate planning at least 5 years before you move into the nursing home. Of course you don’t know if or when that will happen, so you have to be proactive and do your estate planning way in advance.

On February 8, 2006, President Bush signed into law, the DRA (Deficit Reduction Act). Among other things, one of the provisions of the act was a 5 year look-back rule. This means that if you give your assets to your kids (or anyone else) within 5 years of the time you apply for Medicaid assistance, they can “look-back” and pull that gift up to today. The result is that Mom won’t be able to get Medicaid for a while (figure according to a complicated formula) as a result of having made that gift. If your parent is in that situation, there are things we can do, but none of them are as good as the results we can get if you plan ahead.

One great way we can be proactive, plan ahead and protect assets, such as the family farm, is by use of a special kind of Irrevocable Trust that we will discuss in Part 2 of this post

Sunday, October 4, 2009

Revocable Living Trust - Part 3

Here is the third and final part of the series on Revocable Living Trusts. This part focuses on when it is appropriate to use a Revocable Living Trust.

The first question goes something like this, “You have told me all of the advantages to a Revocable Living Trust, now what are the disadvantages”? Fair enough – here are the answers:

1. A Revocable Living Trust based plan usually cost more initially than a will. You remember the old Fram oil-filter commercial where they say “Pay me now or pay me later” – it’s the same way with an estate plan. A will is cheap and easy up front but at the death of the second spouse there is usually a probate. The cost of the probate and the related hassle associated with it could all have been avoided by doing a Revocable Living Trust up front.

2. There is no Court proceeding at death with a Revocable Living Trust. You may think that this is a positive thing, but some estates are so complicated or so messy, the family needs a Court to “clean up the mess”. If your estate is complicated or messy and you can’t clean it up during your lifetime, you may need a Court to do the dirty work after your death. If this is the case, the cost of probate would have been justified. In most cases however, paying 3% or so to probate a will is an unnecessary cost that could have been avoided.

The second question is, “Does a Revocable Living Trust protect Momma’s farm from the nursing home”? The question is flawed, as I will explain below, but the quick answer is NO.

The primary flaw in the question is the way that it is asked. The nursing home has no power to take anything. They are just a vendor. They are “selling a room” + nursing services each month in exchange for money. They know that (1) If Momma comes to them straight from the hospital, that Medicare may pay for up to 100 days; (2) After that, you pay until you are almost broke (we will have future blog articles on Medicaid qualification); (3) Then, you will qualify for Medicaid, which will pay for long term care. Again, the nursing home can’t take anything you have. They just want to be paid. It may just seem like they take assets because sometimes people have to sell things, like the farm, to use this money to keep a parent in a nursing home.

There is a way, however, to protect treasured assets, like the family farm. The secret way to do this will be revealed in our next blog.

Friday, October 2, 2009

Revocable Living Trust - Part 2

In our last post, we talked about the 3 parties to a Revocable Living Trust. In this post, we're going to take about some of the advantages to this type of trust.

1. Probate Avoidance - For illustration purposes, assume a trust is a box that holds title to all of the assets that you put in to the trust. The goal is to get all assets in that box so that it (and not you) holds title to everything. When this is done properly, you own nothing individually, so when you die, you have nothing to probate. All of your assets are owned by your trust, which didn’t die, so there is no need for a probate. The key to this whole process is funding. Assets do not magically “jump into the box” – you have to put them in there. The way we do this is to re-title each asset from our individual name to the trust name. This is called “funding the trust”.

2. Incapacity Trustee – One big advantage to a revocable living trust it the ability to appoint an Incapacity Trustee. This person (usually your spouse or child) will step in your shoes if and when you become incapacitated, and will be empowered to use any and all assets in the trust for your benefit. They can also manage and care for the assets during your incapacity. If you get better, you simply start taking care of your own business again, without the necessity of Court approval.

3. Estate Taxes – This is the government’s “last bite at the apple”. When you die, Uncle Sam wants to know the date of death value of all of your assets. If they are over a certain amount, you will most likely owe federal state tax. The amount of money that you can leave to your kids without paying federal estate tax continues to change and will continue to do so in the future. In 2011 the amount that you can pass without paying federal estate tax is $1 million dollars. This seems like a lot, but by the time you add up the full, fair market value of all assets, you may be surprised. The amount that you can pass without paying tax is the exemption amount. If you are married and set up a trust with appropriate tax planning, each spouse can exempt the full allowable amount at their death and can pass this to their kids, estate tax free.

4. Control – Some people may feel a bit squeamish about putting everything in a trust. They have worked hard for what they have and they want to control it. Well, the good new is that they can! With a Revocable Living Trust, you are the Trustor (you own it); you are normally the initial trustee (you control it); and you are the initial beneficiary (use have the right to use and spend it). If you are married, both spouses normally fulfill these positions jointly – at the death of the first spouse, the surviving spouse normally becomes the sole surviving Trustee and Beneficiary.

5. Distribution – otherwise referred to as “who gets my stuff when I die?” Most people think that they need a will to distribute assets at their death. Actually, if you have a trust and it is fully funded, you do not need a will. For safety’s sake, we always prepare a “pour-over” will, which “pours over” any assets to the trust that a person forgot to put in the trust while they were living. However, rarely use it because if a person has put everything in the box, there is no need for a probate - everything is distributed directly from the trust to the persons named therein as beneficiaries. You can state who you want to get assets and when they get their share – for example money is held for college expenses, then they get the balance at age 25. You can also state how they receive assets: Beneficiaries can get assets immediately upon your death, at some set time in the future, or incrementally, such as so many dollars per month. Finally, you can state what they get. For example of you had two children, you could state that they shall receive a 50% - 50% distribution of all remaining estate assets at my death. Practically speaking, your children would then decide who gets what – the only stipulation would be that it is equal. You could also specify what they get. For example, “Bob gets the North 40 acres of the farm plus my brokerage account. Sally gets the South 40 acres plus my CD at the bank. All other assets are to be equally divided 50% - 50%, per stirpes. Per stirpes means that, if a child predeceases you, then their share would be distributed equally to their children, by right of representation.

Summary: Obviously, there is a lot to estate planning, but a well qualified estate planning attorney can easily walk you through the process. This article contains many of the major issues that you need to consider. Sit down with your family, discuss this, then call your estate planning attorney TODAY! Procrastination or the fear of acting can cause your family a lot of time, trouble and grief down the road.

Wednesday, September 30, 2009

Revocable Living Trusts - Part 1

There has been a lot of information floating around these days about the use and misuse of Revocable Living Trusts. The purpose of this three-part article is to separate fact from fiction about the use of this estate-planning tool. In Part 1 we will look at the parties to a Revocable Living Trust and in Part 2 we will look at some trust advantages. In Part 3, we will look at when it is appropriate to use a Revocable Living Trust.

A Revocable Living Trust is a popular estate planning tool, because in the right situation, it will enable a person to (1) Avoid probate; (2) Reduce the chances of a guardianship upon incapacity; and (3) Reduce or eliminate estate taxes; (4) Maintain control of assets; (5) State a plan of distribution of assets at the death of the second spouse.

We will talk about these obvious advantages of a Revocable Living Trust in a minute, but for now, lets look at the three parties to a trust:

1. Trustor – Sometimes also referred to as settlor or trust-maker. This is the person who owns the assets and contributed or re-titled all assets to the revocable living trust (“put them in the box”). If Husband and Wife joint own all assets, they would both be Co-Trustors of their joint trust.

2. Trustee – This is the person who manages the assets contained in a trust. Typically the initial trustee is the person who sets up the trust. If Husband and Wife established a Revocable Living Trust, both Husband and Wife would be co-trustees of the Husband and Wife Living Trust. Upon the death of either spouse the other would be the remaining initial trustee.

Upon the death of Husband and Wife, a successor trustee would be named. The successor trustee could be a person, such as the child or children of the Trustor. You can name more than one child as successor trustee. The question of whether this is a good idea has to be decided by you!

Finally, the successor trustee could also be a corporate or institutional trustee, such as a bank trust department. Since corporate trustees are not emotionally tied to any family member, they can be relied on to carry out your wishes contained in the trust. Most banks charge a small fee for this service (usually around 1%) but the fee is not normally charged until they start work, which is after your death or incapacity.

3. Beneficiary – These are the persons that are designated to receive your money and other property at your death. Normally no assets are distributed until after the death of the second spouse. At that time, assets can be immediately distributed to any beneficiary that you have named in the trust. However, if you wish, your assets can be held in trust and can be distributed according to your plan. For example you can state that the money is to be used for a child’s college expenses or held for their retirement.

In tomorrow's blog, we will talk about some trust advantages - see you then!

Monday, September 28, 2009

Estate & Elder Law Workshop at First Community Bank

You are invited to a workshop entitled "Estate, Nursing Home Protection and Life Care Planning" which will be presented on:

Date: Tuesday, September 29th,
Time: 6:30 - 8:00 p.m.
Location: First Community Bank
3084 Bill Foster Memorial Hwy, Cabot, AR.
Refreshments provided. Sponsor is First Community Bank

You should especially attend if:
1. You have not done an estate plan
2. Your estate plan is more than 5 years old
3. You do not have current health care documents that are HIPAA Compliant
4. You have an aging parent that has assets they would like to protect should they become incapacitated and need nursing home care.
5. Your parent needs care now and YOU are the caretaker.

First Community Bank has just opened their new branch at Exit 16 (across from McDonald’s). The workshop will be held in their lobby, after hours. We will have refreshments. It will be fun. We hope to see you there.

Saturday, September 19, 2009

Life Care Planning - Bridging the GAP

Last year when Cindy and I were attending the NAELA Elder Law Conference in Hawaii, I recorded a short clip about why I'm an elder law attorney. Unfortunately, the whole clip didn't make the blogisphere trip, but here's what came thru...


The rest of the story is that after personally dealing with my Mom's situation I knew that I needed to shift my focus to helping people who had gone through what I had just endured. My Mom had an unexpected (at least unexpected to me) stroke after going through a valve replacement surgery. The doctor told her that she needed to have this done or she had a high risk of heart attack or stroke. She told me that if she had a heart attack and died, that would be O.K., but she did not want to have a stroke. At age 85, she was in good health, was living alone, driving to the grocery store and church and enjoying life -so at the advice of doctors, she risked having the surgery. She made it thru the surgery and after a 3 week hospital stay, went home. A week later, she had her stroke.

After her stroke, it was impossible for her to live at home, so we had 2 years of nursing homes, hospitals and ultimately hospice before her death. I knew a lot about practicing law prior to this time, but knew nothing about all of the many day-to-day things that needed to be done to take care of my Mom. I had to learn, the hard way, about all sorts of things to make sure Mom got the best possible care.

I like many others before me had fallen into THE GAP - that is, the gap between legal issues and health care issues. It seemed that no person or entity was filling the gap – it was just there. Lawyers would help families sort through the legalities, then wish them the best of luck on the health care side. Health care providers would do just the same thing from their end. Families were left to figure out how to navigate the great gap in between.

About this time, I found that a few cutting-edge elder law attorneys were recognizing this dilemma and were facing it head on in their law practice. They hired life care planners, who worked directly with families to help with critical life care decisions. They would take the families by the hand and walk with them through THE GAP. We started working with life care planners a couple of years ago in our law firm. Since we have, I can’t imagine not doing so. Now we have a road map. No family should have to traverse the gap alone. We can help the family with all of the legalities (wills, trusts, powers of attorneys, Medicaid and Medicare, etc.) then we can walk them through the gap to the health care side to make sure that their parent is getting the best possible care, in the least restrictive environment, without going broke.

Most of us already have our plate full. We have a job, children, a million things going on in our lives - then Mom or Dad has a stroke or Alzheimer's or something bad - that demands immediate attention. When this happens in your family, don’t venture out into the gap alone – give us a call and we’ll break out the roadmap.

Thursday, September 17, 2009

Time-Out Workshop

Every year the Elder Law Practice sponsors a workshop for health care professionals called “The Time-Out Workshop”. This is a workshop where doctors, nurses, nursing home administrators, social workers, and others in the health care profession that serve Seniors, can spend a day learning relevant, cutting-edge information, networking with each other and just having fun enjoying a day out of the office.

This year the Time Out Workshop is held on October 13th at the U of A Cooperative Extension Service at 2301 S. University Avenue in Little Rock. We start gathering at 8:00 for Starbucks coffee and Danish, browse vendor exhibits, then move to the auditorium at 8:45 for program kick-off. This year, our awesome slate of Time Out Workshop speakers are as follows:

Neal Wyatt, D.O.
Artificial Nutrition and Hydration: The Great Debate
Dr. Wyatt is the Corporate Medical Director for Arkansas Hospice since October, 2007 and has worked with Arkansas Hospice since December of 2006. He is Board certified in Family Medicine and Hospice and Palliative Medicine.
Very few medical topics over the years have garnered such great debate as the issue of artificial nutrition and hydration (ANH). This topic has stimulated great discussion among medical and social ethicists, the legal system, and medical care providers. Much of what is believed and practice in the clinical realm is contradictory to the few studies that have been published, in particular when discussing the issue of ANH in the terminal setting. Medical care has progressed to a place where it is not enough to ask if “we can”, but also to ask if “we should”. In this lecture and discussion, we will look at some of the clinical studies that should drive some of our decision making as health care professionals, and then will discuss the various ethical and legal principles that both drive and govern how we look at this complex issue. We will conclude by looking at a comprehensive way to begin this discussion with patients and families.

Morgan Sauer, M.D
I’d Rather Tap Dance on a Landmine
Medical providers and many of those in the health care system are “deathly afraid” to discuss death and dying with their patients. Conflict arises from unmet needs and unmet expectations. We will discuss ways to empower your patients by effectively communicating.

Carol J. Randolph, MSNc, RN, CDE, APN
Diabetes Management- Just when we thought we understood, the drugs and rules are changing!
Carol has completed a Master’s of Science in Nursing from UAMS and has become a board certified Advanced Practice Nurse in 2002. Since that time she has practiced in Endocrinology at LRDC in Little Rock. She has also been a certified diabetes educator since 1996 and will give us an important update on the topic of Diabetes Management for the Elderly.

Kim Curseen, M.D.
Ethical Issues in the Terminally Ill Patient – Part 1, Options of Last Resort. Dr. Curseen is a Palliative Care Fellow, UAMS Department of Geriatric Medicine. Her previous Fellowship was also in Geriatric Medicine (2007) at Yale Primary Care Internal Medicine Residency Program. Dr. Curseen will discuss the topic of Withholding and Withdrawing Life Sustaining Treatment.

We will have Starbucks coffee & Danish in the morning, lunch at noon, snacks at breaks, ice-cream truck during afternoon break, door prices, grand prize, 5.25 hours of CE Credit and a LOT OF FUN. If you haven’t registered, call us immediately at (501) 843-9014 to do so. Or send us an e-mail at doug@arkelderlaw.com and we’ll get a registration form to you. Either way, please act now. We don’t want to miss you at this year’s Time Out Workshop. See you there.

Tuesday, September 15, 2009

4 NOW Documents

If you think about it, a Will or Trust does nothing to help YOU. The primary benefit is for your family when you die. Both documents say who gets your assets when you die and both name a person to administer your estate. There are many other differences in a Will and a Trust which will be discussed in much greater detail in future blogs. The purpose of this blog post today is to discuss what I refer to as “NOW Documents”. These are documents that help YOU NOW, while you are still living.

1. Property or Financial Power of Attorney. This is a legal document in which you appoint an “attorney-in-fact” (not to be confused with attorney-at-law) to make financial or property decisions for you. In effect, the person you name “steps in your shoes” since you give them power to take certain actions for you. Although a power of attorney can be designed to be immediately effective, for estate planning purposes, it is normally springing, that is not effective until you are certified incapacitated by two physicians. Gone are the days where we can routinely ‘get-by’ with a one-page power of attorney. Most financial institutions, brokers and others want to see the power that you are trying to enforce specifically laid out in the power of attorney. As a result, a properly prepared power of attorney may be 20 –30 pages long. The power of attorney should be durable, that is, be effective even if you are incapacitated.

2. Health Care Power of Attorney – In this document, you appoint a health care attorney in fact to make health care decisions for you in the event you are not able to make such decisions for yourself. This document authorizes your decision maker to make all health care decisions on your behalf, if you are not able to make them yourself, including the ultimate “pull the plug” decision, discussed in Private Living Will below. For example, I was the attorney in fact under my Mom’s Health Care Power of Attorney after she had her stroke. For 2 years, I made all health care decisions for her, since she could not make them for herself. This is the ultimate NOW document, since it authorizes another person to make decisions that have a profound effect on your quality of life, while you are living but not able to make decisions for yourself. This document needs to be separate from the property power of attorney, not just a sentence or paragraph in that document – it is much too important for that! Also, since a separate body of Arkansas law governs health care powers of attorney, they need to be designed and executed separate and apart from a property power of attorney.

3. Private Living Will - This is the state specific document whereby the attending physician certifies that you are terminal and irreversible or permanently unconscious. In this event the physician may withhold or withdraw treatment that only prolongs the process of dying. The private living will may be designed to require that the attending physician consult with the person appointed in your Health Care Power of Attorney before withholding or withdrawing treatment that would unnecessarily prolong your life. Having personally been in the shoes of decision maker in a situation like this, I can testify that this is not an easy decision to make. It is very helpful not only to have a very good living will that describes what treatment you do and do not want, but also to have a conversation with the person that you are appointing to make this decision for you – having had this conversation makes It much easier for the decision maker to make the decision that you want them to make when the time comes.

4. HIPAA Release - Because of the new privacy laws, it is imperative that you authorize medical personnel to release your confidential medical information to certain family members. Without this document, if a medical provider releases any of your confidential medical information to anyone, they most likely have violated a provision of this federal law. If you go into the hospital for an elective procedure, they will ask you to sign a HIPAA (Health Insurance Portability and Accountability Act) authorization on the spot, before your surgery. However, if you go into the hospital on a stretcher, you are not able to sign anything! I hear stories almost every day of family members who are shocked when the hospital won’t even tell them what room their loved one is in – much less give them any health care information. Don’t get upset at the doctor or nurse or medical provider – they are just following the letter of the law. In some cases, release of this information is a felony! Don’t put them or yourself in this situation. Sign a HIPAA Authorization designating who you want to have your protected health care information NOW – before something bad happens.

The above documents are necessary to complement any estate plan. They are normally referred to as ancillary documents since they complement either a will or trust based plan. However given the above descriptions, I think you understand why I think that these NOW documents are the most important documents in any estate plan.

Monday, September 14, 2009

5 Reason Why People REALLY Should Plan...

Why do today what we can put off until tomorrow? Sounds funny – but that seems to be the motto of many folks who don’t do the planning that they know they need to do. The American Bar Association estimates that around 70% of people have never done estate planning at all. After having practiced law for over 24 years, I feel that this number is low. We all know why we don’t plan - we love to procrastinate! However, in this article, I want to discuss five reasons why people REALLY should plan.

1. Once you lose your mental capacity to plan, it’s too late for you to sign documents. Sometimes folks plan to plan, but never get around to it. Then Alzheimer’s, stroke or other mental or physical ailments creep up a little at a time, until you reach the point that – IT’S TOO LATE! And when it’s too late, it is too late forever. If this has happened to someone in your family, don’t despair – there are still some good crisis planning strategies. However, if you’re reading this and still have your capacity, don’t wait any longer. Contact your elder law or estate planning attorney and do something NOW, while you still have the capacity to do so.

2. There is now a 5 year look-back rule on all transfers. This means that if you transfer (give) assets to someone for less than full and fair value, which is referred to in the business as an ‘uncompensated transfer’, then you may suffer a penalty as a result of the transfer. This means that because of the transfer, you may not be able to receive Medicaid benefits for many months. This also means that because of this uncompensated transfer, the person who needs care may not be able to get it or may have to sell assets that they could have otherwise kept had proper pre-planning been done.

3. If you do proper estate planning more than 5 years before the onset of incapacity, you can protect many valued assets (such as the family farm, money, rent houses, etc.). Many times, those going into a nursing home will have a special asset, such as the family farm, money, rent houses, etc. , that they do not want to lose. Families often tell me that they don’t mind spending the money for long term care, but they really don’t want to lose the farm or other treasured asset. With proper pre-planning, done more than 5 years before the need for long term care arises, these treasured family assets can often be protected.

4. When you pre-plan your estate, your reasoned, thought-out choices will be carried out, rather than some last minute, band-aid “fix”. No one knows your business or your family better than you. This statement is obvious. If you meet with an elder law or estate planning attorney while you still have capacity, you will not only be able to protect your assets from certain types of financial loss, but you, with their help, will be able to craft a plan that will greatly benefit your family, sometimes for generations. Last minute planning often results in band-aid fixes which is never as good as planning when time, capacity and resources are all on your side.

5. You can make decisions regarding who handles your estate during incapacity and who makes health care decisions for you. When people think about estate planning, they are often thinking of a will or a trust. However, the most important estate planning documents are neither of the above. A properly prepared financial power of attorney, a separate health care power of attorney, a private living will and a HIPAA Authorization, are all critical documents, because they determine who has control over your finances, property and health care decisions while you are alive. It is critical to understand the workings of the health care decision making process and to discuss this process with your family and with your attorney. We will discuss this process and the documents that make it all happen in our next blog.

Hopefully, after reading this your will not walk, but run (carefully!!!) to your elder law or estate planning attorney’s office and start work on a properly prepared estate plan for you and your family TODAY.

Saturday, September 12, 2009

Funeral Pre-Planning is a Great Idea

Thursday night we did a Workshop at ASU – Beebe concerning the need for Advance Planning. Our co-sponsor for the event was Westbrook Funeral Home of Beebe. We had a good crowd and a lot of interest. At this workshop, the primary focus was how to protect assets in the event of a long term care stay. The reality is that if you or a loved one has to go to a nursing home and you haven’t done estate planning in advance, your options are limited. However, there are good things that can be done to preserve some assets. One thing is pre-planning and pre-paying for your funeral. A pre-paid irrevocable burial contract is an exempt resource in Arkansas for Medicaid planning purposes. There are many ‘maybes’ in life, but dying is not one of them. If the parents don’t pre-pay for their funeral and last expenses with some of their few remaining dollars, this expense may fall in the laps of the kids when the parents die. Pre-planning and pre-paying for your funeral is also a good idea for two additional reasons: 1) It takes the emotional strain of this decision off the kids at the time of death; and (2) It freezes the cost – a person in the funeral industry told me that the cost of final expenses was going up approximately five percent a year. By locking this in now, you are saving a lot of money.
So, the two primary lessons I hope you learned from this blog post are:
1. Pre-plan your estate while you have the capacity to do so. I will discuss many reasons why you should do this in my next blog post.
2. Pre-plan your funeral because (1) An irrevocable pre-paid burial contract is an exempt asset for Medicaid purposes; (2) To protect your family from the emotional trauma of having to plan for you at the last minute; and (3) To freeze the costs, which, like everything else, are rising.

Wednesday, September 9, 2009

Assisted Living Facility Keeps Residents Hoppin'

Last night I was invited to speak at an Alzheimer's support group at a fairly new and very nice assisted living facility in Malvern. I arrived a little early - just in time to hear the tail end of a report of the Activities Director of the facility. The range of activities available to residents astounded me. I think that I only expected to hear about Friday bingo and afternoon card games. Instead, the Activities Director spoke of (1) Opening the place up for Halloween and told how many kids were there last year and how the residents enjoyed it tremendously; (2) A 50's Day, complete with malt shop, soda jerks, sock hop and 50's outfits; (3) Art classes and crafts of different kinds; (4) Beauty pageant; (5) Senior Olympics; (6) Dunkin' Booth; (7) Gospel Singing and on and on...

You would have to try very hard to be bored in this place! If the residents participate in 1/2 of the available activities, they would have no trouble sleeping. Several years ago, the only option for seniors was either stay at home or go to a skilled care nursing home. Today, there are several good options - one of which is an assisted living facility. If you are a Senior or have a Senior parent who is needing help, check out the assisted living facilities in your area. I think that you will be pleasantly surprised.

Wednesday, September 2, 2009

FREE Alzheimer's Planning Workshop in Malvern

The Meeting in Malvern at
The Crossing in Malvern

Join us for a FREE 1-Hour Alzheimer's planning workshop next Tuesday night (September 8th) at the Crossing at Malvern. Workshop time will be from 6:30 - 7:30. We'll be discussing relevent legal issues that you need to know including Medicaid Qualification, Powers of Attorney, Estate Planning issues and many more. To reserve your spot, just call our office at
(501) 843-9014 to reserve your seat(s). We look forward to seeing you there.

Doug Jones

The Crossing at Malvern
720 N. Walco Road, Malvern

Thursday, August 27, 2009

Time-Out Workshop

It's that time again...
What time is that, you ask?
It's Time-Out Workshop Time!

Watch your e-mail and our web-site for constantly updated information. Vital statistics are:

Date & Time: October 13th from 8:30 - 4:30
Location: U of A Cooperative Extension Service, 2301 S. University, Little Rock, AR
Why? Inexpensive ($35) AND Educational (Check back soon for Speaker Updates and Agendas) AND Relevant AND Fun Time, Networking with friends & Vendors, Great Food, 4.5 hours CE.

If you attended last year's Time Out Workshop and would like to post a comment, please do so below. This may be very beneficial to new potential attendees who haven't attended and may be wondering whether they should go. Thanks.

Monday, June 15, 2009

2009 Little Rock Symposium - "Alzheimer's: The Continuum of Care"

We Are Excited To Participate!
2009 Little Rock Symposium - "Alzheimer's: The Continuum of Care"

It is with great pleasure and honor that we will be presenting on

Tuesday, June 16, 2009
DoubleTree Hotel ~ Little Rock, Arkansas
8:00 am ~ 4:15 pm
Keynote Speaker: Bill Bridgwater, National Alzheimer's
Association Board Member
Cynthia will be speaking about
"A Prepared Family is a Happy Family"

To reserve, call Alzheimer's Association at (501) 265-0027

Tuesday, April 21, 2009

Great Day for Alzheimer's Walk

Some crazy couple seems to be enjoying themselves as they finish the 2009 Arkansas Alzheimer's Memory Walk.

Wednesday, April 15, 2009

Spend This Saturday With Friends!

Alzheimer's Association Memory Walk

Join us as we lead our team in the Memory Walk for the Alzheimer's Association!

SATURDAY, APRIL 18th / 9:00 a.m.

If you are not part of a team yet, please join us at 9:00 a.m. on the North Little Rock Side of the Big Dam Bridge (4000 Cooks Landing Rd. in NLR). Or give us a call at 501.843.9014 and let us know you want to join our team!

We have long been supporters of the Alzheimer's Association and hope you will join us on April 18th, as we bring awareness to this important cause. Click here to learn more about the 2009 Central Arkansas Memory Walk.

Join our team! Call us today!

Tuesday, March 24, 2009


When an individual dies with or without a Will, assets in his or her name alone often cannot be distributed without court permission. Many people think that if they have a will, that this fact keeps them from having to go through the resulting Court proceeding, known as 'Probate'. What they don't know is that having a will in most cases actually guarantees Probate. If a person dies without a will (known as 'dying intestate') the same Probate process is required to re-title property. Our attorneys and paralegals are extremely qualified to represent executors, administrators and trustees through the entire Administration process - everything from the preparation of the estate petition to the formal or informal settlement of the estate accounting and the distribution of assets to beneficiaries. This representation also includes the resolution of any and all issues involving creditors and beneficiaries and the preparation of estate and fiduciary income tax returns. If you are the one responsible for handling the final affairs of a loved one and don't know which way to turn, give us a call. We can help.