Whether you are currently caring for an aging parent or relative or expect to be doing so soon, its never too early to think about important legal questions that you will face at every stage of caregiving. My Health Care Manager has enlisted the help of George Slater to explain the issues specific to elderlaw and to help you prepare for the future.
George G. Slater is the senior partner of Slater Law Office LLC, Elder Law Attorneys, located in Carmel, Indiana. He has practiced law for twenty-seven years, and has limited his practice to Elder Law for the past seventeen years. George holds a law degree from Indiana University, a Masters Degree in Business Administration from Northwestern University, and is also a CPA. He served as Chairman of the Indiana State Bar Association Elder Law Committee for five years and is Board Certified by the National Elder Law Foundation. To learn more, please visit his website at http://www.slaterelderlaw.com.
Have you ever heard of “granny-snatching?” This is a term that is used when, for example, a son or daughter invites their elderly parent from out of state for a visit and then files for guardianship over them in the son or daughter’s home state – even though the parent may have no real connection to the state they are visiting. This is possible in many states because the courts in the state in which the alleged incapacitated person is physically present has guardianship jurisdiction. In a famous recent case, Lillian Glasser, a multi-millionaire, was a long time resident of New Jersey, but was visiting her daughter in Texas. The daughter petitioned and was awarded guardianship over Lillian by a Texas court. Many people thought the case should have been brought in New Jersey, Lillian’s home state.
There is a movement to stop this kind of thing. Indiana has proposed adoption of the Uniform Adult Guardianship and Protective Proceeding Jurisdiction Act. If adopted, it would not allow a Court to have guardianship jurisdiction unless the alleged incapacitated person had a significant connection to that state. The law would have prevented Lillian Glasser’s daughter from getting guardianship over her in a Texas court just because Lillian was visiting there and had no significant connection to Texas. The Act would also make it easier for one state to recognize a guardianship started in another state. It would also make guardianships easier to transfer from state to state. The obvious problem in all of this is that all states would have to adopt the law for it to work.
Meeting with elderly couples who plan to marry is one of the more enjoyable times spent as an elder law attorney. There is no discussion of the pain that may have been suffered when an earlier spouse died. There is no discussion of current health care problems. Financial considerations seem to be put on the back burner. Sometimes the new spouse will be someone they knew from the past. It is like the couple has become young again. Hope springs eternal. It is my job to explain to the couple, hopefully without dampening their spirits, what their rights are with and without a premarital agreement.
A premarital agreement often states that each party, even though they are about to be married, would like to control the destiny of their own property which was earned before the marriage and without the help of the other. There is often a desire to state that in the event of a separation or divorce that the other has no call on the property and that in the event of death, there is a right to pass such property on to their children from a previous marriage.
Without a premarital agreement a spouse cannot be disinherited. There is an obvious public policy concern about spouses disinheriting each other and so there are laws that allow a surviving spouse to take a share of the deceased spouse's estate even if they are left nothing. This share is between 25% and 50% depending upon the circumstances. A premarital agreement waives the right to this elective share. 
Indiana also has a survivor's allowance provision which says that a surviving spouse automatically is entitled to $25,000 worth of property. This right can also be waived by the premarital agreement.
There are several things that must be considered in doing these agreements:
- The assets of each person must be fully disclosed in the agreement.
- Each side should get their own attorney to look at the agreement, but often the parties use the same attorney and the agreement just states each had the opportunity to hire independent counsel.
- I think it is important to talk about who is responsible for health care costs because these can be significant. Medicaid is the program that pays for the majority of nursing home care in Indiana and Medicaid ignores premarital agreements. This means that even if there is a valid premarital agreement that says each spouse is on their own, Medicaid will still combine their assets for eligibility purposes.
- The new couple can combine some assets in joint accounts and such accounts will not be bound by the premarital agreement. The agreement will control only those assets kept in separate name.
I would like to talk about scams on the elderly. I am a board certified elder law attorney and am supposed to know something about the elderly and their problems. However, the susceptibility of the elderly to scams is something that greatly puzzles me and I do not have an answer for it. I just cannot understand the mechanism which makes smart people (who would never fall for a scam when they were younger) fall for the same scam when they are older. I remember a case last year in which the son of an elderly woman brought in 3 grocery bags full of scam mail his mother was answering. She had probably wasted about $20,000 on lotteries, sweepstakes, and con mail.
Right now on my desk are three files representing clients I have dealt with for a long period of time. I will call them Clients A, B and C. A was an executive of a company and had to be financially sophisticated to hold that job. He came to me a month ago with a letter saying he had won $1,000,000 but needed to send in a processing and handling fee to secure his winnings. He wanted me to authenticate his winnings. When I told him it was a scam, he seemed disappointed but said he valued my opinion. In his younger years, he would have thrown the letter in the waste basket. In his older years, he took it to his attorney hoping it was something. Why did age make him more vulnerable?
Client B was not an executive type but a blue collar worker. He was always very handy with everything around the house. He saved a lot of money by doing many things for himself. He once showed me a lake cottage he had built himself. I know he has saved several hundred thousand dollars - some of which I think is now at risk. His son says he has been answering scam mail and sending checks to various people to secure his winnings. He brought me an official looking letter saying he was very close to winning a large jackpot. I told him it was a scam but I don't think he believed me. The con is always the same. Tell someone they have won something and ask for some money back to secure it.
Client C, an elderly lonely gentleman, is about to be taken advantage of by a woman, who promises him companionship. In return, he will make her financially comfortable. He came to me for some legal documents regarding the new relationship. After I figured out what was going on, I respectfully declined to do the work. I said I just did not want to see him get involved and would not aid him. Again, I asked myself why his judgment had changed. Was it just being lonely or was the same thing at work that makes the elderly so vulnerable to sweepstakes?
I don't know but I sure have a ring side seat in watching it happen.
A recent New York Times article highlighted the negative impact of “elderspeak” on the mental health of older adults. The term “elderspeak” was defined as “the sweetly belittling form of address that has always rankled older people.” I decided to find out if lawyers thought this was a problem and I received the following response from a 76 year old lawyer, which says it all. I will change his name to Joe Smith to protect his identity.
At my age (76), I resent being called "Joe" by younger health care workers,
so I correct them "It's Mr. Smith to you." Now, in restaurants when the waitress calls me "sweetie" or "honey," I don't take offense - they don't know my name. What "bugs" me is when a waitress says to my wife and me, "What can I get for you guys?" I gently remind her that there is only one guy present.
One time I took one of those "sweet young things” (a Purdue student) aside
and told her, gently, that she could increase her tips by not calling old people
"guys," and that if she wanted to call a booth of youngsters "guys," they
probably don't mind (they don't tip very much anyhow). She seemed to really
appreciate my suggestion.
What really gets me is when a particular younger usher at church greets
me with a handshake and says, "How are you today, young man?" Every
time, I remind him that I am an old man, but he persists. So, I think I'll use
a different entrance from now on!!!!
The article itself is worth reading and may be found at http://www.nytimes.com/2008/10/07/us/07aging.html?_r=1&oref=slogin
I was recently sitting in the reception area of a nursing home when I was approached by an executive type person. He identified himself as an area manager and asked if there was anything that I thought this facility could improve upon. “Education,” I said. “There can never be enough education for staff.” “What do you mean?” he asked. I said that, for example, I would place a bet that his staff did not know who could make health care decisions for a person when they could not. “You can’t be serious,” he said.
Just then the administrator came into the lobby and so the question was posed to her. By this time I was a little nervous because I knew it was quite possible that she would not know the correct answer and it would be me that made her look bad. He asked her, “who makes health care decisions for a person when they cannot and there is no advance directive?” Without hesitation, she blurted out "the spouse"... then "the kids"... Wrong.
The correct answer is that our health care consent law says that when a person cannot speak for oneself and there is no advance directive and no guardianship in place, the spouse, adult children, siblings, and parents ALL have the right to make health care decision for the incapacitated person, AND there is no priority in that group. This law gives maximum flexibility to the family as a whole but does set up possible conflicts between family members since there is no priority in the decision making group.
I quickly apologized to the administrator saying that I did not mean to put her on the spot – and I did add that many people do not seem to know the answer. So if you want to try it for yourself, ask this question of the next health care worker you meet and the odds are – they don’t know.
3) Another thing to guard against is allowing a facility to consult a “POA” or power of attorney, when that power of attorney may have no designated health care powers. A power of attorney usually refers to financial powers and one must read the document closely to see if there are also health care powers. I have noticed that once a POA is documented in a person’s chart, that person automatically tends to become the health care representative, no matter what the document says.
The point of these examples is that we must stay watchful when advocating for those who have advance directives.
2) Did you know that the default health care decision maker, under Indiana law, is a group of people? Unless you have made out a designation of health care representative or have a legal guardian, your health care decisions can be made by your parents, your brothers and sisters, your spouse, and your adult children – AND THERE IS NO PRIORITY IN THAT GROUP. In other words, they all have the same level of authority. This can lead to problems or a stalemate. Now think about what happens in a hospital or nursing home when there is a disagreement between family members about what health care decision to make for a person. I can tell you that standard procedure in a hospital is to get the entire group together and try to mediate the dispute. However, when you think about it, that is not what your advance directive says. It does not say, if I cannot make a decision, mediate the dispute among anyone making a noise about it. It says a specific person is named to make a decision when I cannot. The designated health care representative may have to point out that they, and not the group, have the authority.
Please check next week for a third situation of how things can progress differently than planned with respect to advance directives.
Much has been written about the requirements for executing advance directives such as powers of attorney, designation of a health care representative, living wills, arrangement for organ donation, and do not resuscitate orders. Giving thought to any of these directives is a good idea in advance of the need for them - for seniors, their caregivers, and people of all ages. Today I am thinking more about some of the things that can go wrong, or should I say go differently than anticipated with respect to advance directives. For example:
1) The law in Indiana is that a designation of health care representative, more commonly known in other states as a health care power of attorney, is only effective when the principal is not able to make decisions. Notice that in our documents the power to make decisions for someone else is usually prefaced by the words “whenever I am incapable of making my own health care decisions.” That sounds clear enough, but in reality, a health care facility cannot practically decide, on a day to day basis when their patient is capable or not capable. This tends to lead to a bias to ask the health care representative what care should be given, even when the principal is competent to make the decision. It is the representative that may be paying the bills. It is the representative who made the admission decision and has the most interaction with some of the staff. The point is that we must guard against allowing health care providers to always ask the representative. It is the patient that should have input, if possible.
In my next couple of blog entries, I'll give more examples of how things can progress differently than expected...
I thought I would spent the next few blog postings covering a few related topics that are on the top of the minds of all caregivers – how to identify when Mom or Dad is making questionable investments or being taking advantage of through various financial scams. I will discuss several of the more commonly-used practices of each so that you as a caregiver will be on the alert.
I’ve received a number of questions lately about STOLIs, or stranger-originated life insurance policies. STOLIs are a type of life insurance policy in which another person provides the senior with a one-time cash payment and agrees to pay the policy premiums. In return, that “stranger” is named as the beneficiary of the policy. The senior gets immediate access to cash and has no premium to pay. The stranger gets the policy payout once the senior passes. The stranger can also sell the rights to the future benefit under the policy to a third person, usually an investment group or hedge fund.
If these STOLI arrangements make you feel a little uncomfortable, they should. These schemes literally are investments in someone else’s death. They thwart the true purpose of life insurance, which is supposed to provide the surviving family members the ability to pay off the debts and expenses of the deceased – not for the sole intention of providing someone else with the ability to seek a profit from another’s passing.
Some have argued that STOLIs are really just another form of viaticals in which an insured sells off its rights to the policy benefit for something less that the benefit itself to get access to cash to pay for needed medical expenses. The most common use of viaticals is by those with terminal illnesses. The key difference between STOLIs and viaticals is that in the latter, the insured person knows they are going to pass soon and the policy was pre-existing. Under a STOLI scheme, a senior is encouraged to enter into a policy simply to receive immediate cash outright regardless of their current health situation and investors then hope for and hedge on a person’s early death because it will result in higher profits.
While STOLIs fly in the face of public policy, they are currently legal in most states thanks to, among other things, a wrinkle in the NAIC Model Viatical Settlement Model Law. At least one state has recently outlawed them, and several states are currently considering legislation to do so, recognizing that these STOLI policies violate states’ laws regarding "insurable interests" that are designed to prevent a person from buying an insurance policy that has no interest in that person’s continued good health.
My advice is to be on the watch for any large sums of money that Mom or Dad suddenly come into possession of, and to be sure that you are aware of all of the various types of insurance that they have currently in place.
There are two kinds of "advance directives" that are designed to “speak” for your parent regarding their health care needs in the event that your parent can no longer speak for themselves. One is a living will, which spells out in advance your parent’s desires regarding any life-sustaining medical treatments in the event they are incapacitated. The other is a health-care proxy (also called a Power of Attorney for Heath Care) which appoints someone to make these decisions regarding their care in their place. Both are essential in providing your parent the peace of mind and protection that they will either receive the life-sustaining measures they desire or have identified certain procedures they want to avoid. While most everyone would agree that these documents are essential, very few people actually have them in place. Here are a few things to think about regarding each:
A Living Will
• This document provides direction regarding your parent’s wishes as to whether any aggressive treatments should be used to prolong their lives. It only takes effect when your parent is close to death.
• An example of those wishes might be for them to want to pass away without pain and advanced medical treatment in the event that there is no reasonable chance for recovery.
• Likewise, they might provide very broad wishes and ask to be kept alive by any means necessary. It could also be very specific, such as to have artificial nutrition, but not be put on an artificial respirator.
A Health Care Proxy
• This is a much broader authority that provides someone your parent trusts to make these end-of-life and medical decisions for them rather than spell them out ahead of time.
• Be sure that the person your parent appoints is someone they trust that can make these decisions for them and that will have full access to your parent’s medical records.
Both documents must be executed while your parent is fully competent, so don’t wait to talk to them about each. There are state specific requirements in what needs to appear in each of them and when they become effective (ie, some states define “terminally ill” differently), so be sure to consult with an attorney who can help prepare both documents and provide you the proper guidance.
I’ve had a number of people contact me since my last post regarding a parent’s concern that whoever holds a Power of Attorney could literally swoop in and take over their parent’s life at any time. This is a common concern among seniors. If your parent shares this concern, here are some tips on how to talk to them about the importance of having Powers of Attorney:
• Tell your parent to view the powers under a Power of Attorney as their authority to give and to control. Giving someone else authority under such a document is an incredibly empowering step and they should recognize it as such, rather than seeing it as losing or giving up control.
• Your parent needs to very clear with their attorney that helps them prepare a Power of Attorney regarding their concerns and hopes so that he or she can craft the document in such a way it is specifically tailored to their future interests.
• They need to know that its their decision as to how broad or limited the authority they want to provide (ie, handling all financial affairs, or just writing checks out of a specific account) and specifically when she would want that authority to go into effect.
• Tell them that the authority under a general Power of Attorney can be revoked by them at any time, and does not continue in the event they are incapacitated.
• You can also tell them that by creating a carefully crafted durable Power of Attorney specifically for health care now, they are taking an incredible amount of control over their future by giving direction to someone about their own health care needs down the road in the event they can’t make those decisions for themselves.
• Finally, you should encourage them to select someone to be the attorney-in-fact that they trust tremendously and to even choose a trusted and reliable backup in the event their first choice cannot fulfill this role for someone reason.
I hope these tips are helpful as you talk to your parent about the importance of Powers of Attorney. More than anything, they must understand that the authority is their’s to provide, so it is theirs to limit and tailor so that their future affairs and health care needs are taken care of in accordance with their wishes and by an individual they trust. Not taking these steps now might result in them having provided zero direction to anyone at all and then someone else really might “take over” these essential decisions in the future in ways that may or may not be in accordance with their future wishes.
I was reading through an incredible book the other day, called “And Thou Shalt Honor: The Caregiver’s Companion” (everyone should read this book), and found a great legal checklist for caregivers. As you think through some of the suggestions I’ve provided on this blog and prepare to talk to your parent(s) about various legal documents, the following list would be a great tool for all adult children who are caregiving for aging parents to keep by their sides:
- Prepare an inventory of all assets, including real estate, bank accounts, stocks and bonds, pension and retirement benefits, and family heirlooms.
- Help decide who should receive each and every asset.
- If your loved one has a will, review it together to make sure it reflects the person’s wishes. If it doesn’t, suggest she draft a new one.
- Determine whether your loved could reduce the time and expense of probate by creating living trusts and other financial instruments.
- Confirm that the designated beneficiaries of life insurance policies, 401(k) plans, IRAs, and other accounts are consistent with your loved one’s wishes. If not, have her update the names.
- Help select someone trustworthy and reliable as executor of the estate.
- Find out whether your loved one has prepared a durable power of attorney for finances and a durable power of attorney for health care. If she hasn’t, encourage her to do so.
- Inform the prospective executor of the estate, as well as the agents for the durable powers of attorney, that they’ve been chosen for these roles. Ask whether they’re able to accept the responsibilities.
- Discuss your loved one’s wishes for end-of-life care, then help create a living will.
- Make sure that all legal documents conform to the laws of your loved one’s state, and that they’re signed and dated.
- Advise your loved one to store all her legal documents in one place that the two of you can access.
- Keep a signed copy of every legal document for yourself and your loved one’s attorney.
- Provide a copy of the will to the executor and copies of the durable powers of attorney to the designated agents.
- Send copies of the durable power of attorney for health care and living will to your loved one’s primary care physician and other medical personnel involved in her care, whether at home, in a hospital, or in a residential care facility.
- Ask your loved one to write down her preferences for funeral, burial/cremation, and memorial arrangements in as much detail as possible.
- Check to be sure your loved one has drawn up a letter of instruction to address any issues not covered by other legal documents.
I’ve touched on several of these items already, and look forward to expanding on the others in future blogs. If there are specific items in here that I’ve not covered or you’d like to know more about, please let me know.
Hard to believe that there could be a document more important than a will, but there is one. Its called a Power of Attorney and it gives someone the legal authority to handle certain matters in the event a person does not want to handle them on their own. Let's say that an elderly father is having difficulty managing and keeping up with his monthly expenses. He might "give" a Power of Attorney to his daughter to write checks out of his account and pay his bills. In this example, the father is the "principal" and the daughter is the "agent" or "attorney-in-fact". The authority provided under a Power of Attorney can be fairly limited, as in the example above, or fairly significant, such as providing someone with the authority to make gifts, negotiate securities and real estate, or transfer funds.
You might have also heard the term "Durable Power of Attorney". A regular Power of Attorney is used when the principal is still competent and is usually given out of convenience. The power provided under a regular Power of Attorney is revoked should the senior become incapacitated. To prepare for the possibility in the future that the principal may not be competent due to disability, incapacity, or the normal aging process, they should provide someone now with a Durable Power of Attorney. This document provides an attorney-in-fact the ability to manage some or all of their affairs should the principal become incapacitated or incompetent and remains effective until they pass away.
As an adult child and caregiver, it will be important to ensure that your parent has a Durable Power of Attorney. In the absence of one, a court would appoint a guardian to manage the incompetent person's affairs. This process can be expensive, time consuming, and to some it can be humiliating. So, as is the case with other legal documents I’ve discussed, plan for the future now so you and your parent have the peace of mind that all of their affairs will be taken care of in their best interest and consistent with their wishes. You should consult with an eldercare lawyer to be sure that all state-specific legal requirements are met (for example, it may be necessary to have more than one durable power of attorney if your parent has assets in a number of states). At a minimum, Powers of Attorney documents name the person granting the authority, the attorney-in-fact, an alternative attorney-in-fact, the list of powers to be granted, the terms and circumstances of the power granted, and the signatures and seals as required by each state. Most major financial institutions have their own forms for power over certain accounts, so be sure to coordinate your efforts with any banks or brokerage firms.
• All names and contact information of their financial, legal, and personal advisors and any important messages or instructions;
• Household or personal items such as furniture, letters or journals, and jewelry;
• Business documents, files, computers, and various account or access passwords;
• Any funeral or burial instructions, information they would like to have included in their obituary, and any charities or organizations that should receive notice of their passing and/or a gift;
• Details on financial matters not otherwise covered in other legal documents, such as tax returns, credit cards, insurance policies, investments, and vehicle titles;
• Any current or former employers, colleagues, or friends that they would like to receive notice of their passing and any parting messages; and
• Special instructions regarding the maintenance of their home or rental properties, contact information for the regular handyman or plumber, and direction on operating various alarm systems.
Once complete, keep this letter with the will and ask your parent to periodically review and updated it. Letters of instruction will provide everyone with peace of mind that everything close and personal to your parent will be taken care of in accordance with their wishes.
One of the most important steps you can take as a caregiver for an aging parent is to check to see if they have key legal documents in place and up-to-date to ensure that they are taken care of properly, their affairs are being handled, and their assets are distributed according to their wishes. In the next several postings, I’ll cover key considerations as you locate, review, and help maintain your parent’s will, power of attorney, advance directives, and other key related documents.
A will essentially spells out how your parent’s finances and property will be distributed after they pass. If your parent doesn’t have a will, you should contact an elder law attorney to help your parent prepare one (you can easily locate a lawyer through the National Academy of Elder Law Attorneys, www.naela.com, or check with your state or local bar association for references). There are numerous generic forms that you can find on the Internet and complete on your own. However, doing so could increase the chances that the will may not fit certain key state-specific requirements or would be too general to interpret (thus, risking the possibility it could be declared invalid). Also, you want to be sure that a will properly accomplishes your parent’s goals and objectives. In the absence of a will, your parent’s property would be distributed by a court and their estate would be closed by a court-appointed individual who would likely charge a hefty fee.
Once your parent has a will, you’ll need to be sure that the will is kept in a safe place, determine whether there are any amendments to it over time, and identify any related documents (like a letter of instruction). If the will and other important documents are kept in a parent’s safe deposit box, be sure that you have access to it. You may also want to find out if there are assets that are being held outside a will’s purview, such as those that are held jointly or in a trust. Finally, wills should be updated every 3-4 years so that the terms of the will meet your parent’s interests regarding their estate, especially if there have been significant life changes since the last time you reviewed the will, such as the birth of a new grandchild, death of a spouse, purchase of real property (like a time share), or a move to a different state.
As an adult child taking care of your aging parents, taking these steps now will save you and your family considerable time and will avoid confusion, stress, and expenses down the road. Check back soon and I’ll discuss the ins and outs of a durable power of attorney.
Eric Tinsley
Alan Stanford 
Jean Bandos
Karen Kelsey
Natalie Crohn
George Slater
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