Easing the Pain of a Parent's Alzheimer's Diagnosis

As Elder Law Attorneys, we meet with clients on a daily basis who are on an emotional roller coaster. Life was rolling merrily along for them, then all of a sudden they received some bad news - Mom or Dad is in the hospital. After a few days, the news is worse - The Diagnosis is Alzheimer's AND Mom or Dad can't go back home - they are having to go to a nursing home. AND the kids have to select a nursing home for Mom or Dad to go to within 24 hours AND the nursing home costs $5,000 per month.

If your other parent is alive and living at home, no doubt all of this has hit them like a freight train. Will they still be able to live at home ALONE without assistance, or will they need assistance? If they do need assistance, what type will they need?

If Mom or Dad is single, some of the questions are: What do we do with the home? Will he get to return home? Should we sell the home? Where are his bank accounts? Are all bills paid? How will we pay for all of this?

We realize that when an adult child walks into our office, they are reeling from all of the above and more. This is where we try to slow down the process, take you by the hand and help!

Medicaid is the program that will pay for your parent's long term care - yes we have to get some information from you to start this process, but after that we will take the ball and run, doing everything necessary to get your parent qualified for Medicaid. This solves the financial part of the problem.

Secondly, our life care planners will meet with you and do everything possible to make sure that your parent gets the best possible care, in the least restrictive environment, without going broke.

The expense of doing all of this is not paid by you, the child, but out of your parent's spend-down - that is out of the money that they would otherwise have had to paid to the nursing home before they received Medicaid assistance.

The BEST PART is that by taking action: (1) We help your parent qualify for Medicaid sooner; (2) We help your parents preserve additional assets; (3) Our Life Care Planners work hard to make sure that your parent is receiving appropriate care.

If you are reading this, it is likely that something unexpectedly bad has happened to your parent. We can't fix that - but give us a call and we'll help to ease the pain.

Home for the Holidays with Alzheimer's

Home for the Holidays with Alzheimer's! What kind of blog post is that!? If you visited your parents this holiday season and noticed that something wasn't quite right with your parents, you know exactly what I'm talking about.

Our clients usually have very full lives, complete with spouses and children. Needless to say, their plate is full. Then one day when you come home to visit Mom or Dad, you notice that something is not right. Mom or Dad asks the same question about your youngest daughter 10 times in the space of an hour; or maybe they can’t remember your youngest daughter’s name; or maybe they don’t remember something that you did together 2 hours ago. You suspect the worst. You suspect Alzheimer’s.

Several thoughts may race through your mind. Is it really that bad, or was it just my imagination? Can Mom or Dad get by for a while longer without assistance? What type of assistance is available? Do they have enough money to pay for this? Do I have enough money to pay for this?? Do I need to quit my job and move back home? If you have other siblings, can they handle things? If your other parent is living, can they handle it?

Depending upon the severity of the experience, you may have had these and other thoughts race through your mind. Often it is not readily apparent what course of action needs to be taken. However, to get you started, here are three things that need to be done to best help Mom or Dad:

1. Help them get the best possible care. Of course, this is assuming that they actually need care. In fact you may have overreacted. However your gut feeling is a powerful thing so if you suspected something, it definitely pays to take immediate action. The first step is to get Mom or Dad evaluated by a Gerontologist, which is a doctor that specialized in problems associated with aging. There is probably one in your area. After an evaluation, they can determine what actions need to be taken. Sometimes, something as simple as change in medication may be what’s needed. In more severe cases, a stay in a geriatric-psychiatric (geri-psy) facility may be needed to optimize their medications and treatment regimen.

2. In the least restrictive environment. Obviously, the least restrictive environment is at home. If the Alzheimer’s is at an early stage, and their Gerontologist feels that, with proper medication, it would be safe for them to live at home for a while longer, then this should be considered. Another big factor is who is available to help. If your other (well) parent is still living, they will no doubt want to help and want to keep your parent with Alzheimer’s at home. Consider however, the physical, mental and emotional toll that this takes on the health of your well parent - it is often substantial. Do other siblings live close by that could help? If the situation is a little more severe, you may need to consider home health care, an Assisted Living Facility or a Skilled Care Nursing Home. Again, their Gerontologist should be able to make a proper recommendation.

3. Without going broke. All of this care is expensive. Medicare and their Medicare supplement, should pay for doctors, hospitals and up to 100 days in a skilled care nursing facility (see article on this blog about Medicare). After that it’s probably private pay (until they have spent a portion of their money), then Medicaid (see article on this blog about Medicaid).

Most people of this generation are very private regarding their finances – especially with their children. If the situation is severe, it is probably time to “meddle”. If you have siblings, then all of you may need to have the discussion with your parents together (see article on this blog about Saving the Farm). If the planning process is begun early enough, they can protect many of their assets. However, even in a crisis situation, where time is not on your side, an Elder Law attorney will be able to take many actions to preserve and protect many of their assets for their benefit.

There is no doubt that you love your parents and want the best for them. In a situation like we have discussed above, now is the time to enlist the help of professionals and take action immediately – your parents health depends on it.

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.

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.

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.

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.

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.

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

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.

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.

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...

http://technorati.com/videos/youtube.com%2Fwatch%3Fv%3DtZvi9e17T2g


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.

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.

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.

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.