AATEELA Blog

By:  Susan M. Graham, Certified Elder Law Attorney, The Graham Law Office, P.A., Boise, Idaho 83702

Driving in this country is important.  You can elect when and where you are going out.  Losing driving privileges can be distressing as it represents a milestone in life that a person is no longer physically able to drive and they lose some of their independence.

But there may come a time for each of us when it is no longer safe to drive, and we may not notice (or don't want to notice) when that day arrives.

I don't want to be like my client who drove down the street, scrapped 15 parked cars and clipped off every car's mirror.  He denied it was his fault.  "They all parked wrong."

What steps can we take to protect us from hurting ourselves or hitting some innocent person?

Plan ahead!

Authorize a trusted agent, perhaps your health care agent, to help make the decision that you are no longer capable of driving. Here is some suggested language to add to your health power of attorney.

My agent is authorized to tell my doctor that in my agent's opinion, I am a danger to others when I drive.  I realize that this might result in the loss of my driving license and driving privileges.  I also realize that I may not agree with my agent when my agent comes to this conclusion.  However, I do not want to endanger myself and I do not want to endanger others.  Therefore, I put this decision in my agent's hands, as I have the utmost trust and confidence in my agent.¹

____________________

¹Driving Miss Daisy, by Ruth A. Phelps, Trusts & Estates, July, 2011, pages 18-20.

The Wall Street Journal listed 25 documents you need before you die.¹

Their subheading was "Design your death dossier soon - or you could be setting up your heirs for frustration and financial pain."

They are right.  If you don't take the time to create a plan  for your future and organize your documents, you are leaving a mess for your family.  If may be impossible for the people you rely upon to help you.  The distribution of your estate may be different than what you want because you may have failed to coordinate beneficiary designations on retirement accounts and life insurance with your total plan.

So what are those 25 documents that you should organize and put in one location so they are easy to find?  I will list them below and add a few items they forgot.

Personal Information:

• Birth Certificate
• Marriage LIcense
• Divorce Papers
• Military Discharge Papers
• Death certificates for other immediate family members (spouse, parents, children)

Health Care:

• Personal and family medical history
• Durable health care power of attorney
• LIving Will
• Physician's Order for Scope of Treatment (POST)
• List of doctors and prescription drugs

Proof of Ownership:

• Housing, land and cemetery deeds
• Mortgage papers
• Proof of loans made and debts owed
• Vehicle titles
• Stock certificates, savings bonds and brokerage accounts
• Partnership and corporate operating agreements
• Tax returns

Life Insurance/Retirement Accounts:

• Life insurance policies
• Individual Retirement Accounts
• 401(k) accounts
• Pension documents
• Annuity contracts

Bank Accounts:

• List of bank accounts
• List of all user names and passwords
• List of safe deposit boxes and keys

Estate Planning Documents:

• Will
• Financial Power of Attorney
• Trust
• Funeral Plan
• Pet Care Instructions
• List of who receives your "stuff" (e.g., ring and gun)

So get a box and start putting all these papers in that box.  If you put in copies, mark on the copy to indicate where the originals are located.

Does this seem too much to do?  Well, think about the people you care for and think about covering your back.  If you want your life to go as well as possible, even during the bad days, you have to do your part.

So take 30-60 minutes and gather up these documents.  Good for you if you do what I suggest!

P.S.  The total is 32 - not 25.

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¹The 25 Documents you Need Before You Die.  The Wall Street Journal, July 2, 2011, page B7.

In a speech to high school students, Bill Gates passed on to them the following eleven (11) rules.  The rules come from Charles Sykes, author of "Dumbing Down Our Kids:  Why American Children Feel Good about Ourselves but Can't Read, Write or Add" (St. Martin's Press 1996).  It appears that the rules did not come directly from this book, but were the basis of his book "50 Rules Kids Won't Learn in School:  Real World Antidotes to Feel-Good Education" (St. Martin's Press 2007).

Mr. Gates talked about how feel-good politically correct teaching has created a full generation of kids with no concept of reality and how this concept sets them up for failure in the real world.

Rule 1:  Life is not fair - get used to it.

Rule 2:  The world doesn't care about your self esteem.  The world will expect you to accomplish something BEFORE you feel good about yourself.

Rule 3:  You will NOT make $60,000 a year right out of high school.  You won't be a vice president with a car phone until you earn both.

Rule 4:  If you think your teacher is tough, wait till you get a boss.  He doesn't have tenure.

Rule 5:  Flipping burgers is not beneath your dignity.  Your grandparents had a different word for burger flipping.  They called it opportunity.

Rule 6:  If you mess up, it's NOT your parents' fault, so don't whine about your mistakes.  Learn from them.

Rule 7:  Before you were born, your parents weren't as boring as they are now.  They got that way from paying your bills, cleaning your clothes and listening to you talk about how cool you are.  So before you save the rain forest from the parasites of your parents' generation, try delousing the closet in your own room.

Rule 8:  Your school may have done away with winners and losers, but life has not.  In some schools they have abolished failing grades and they'll give you as many tries as you want to get the right answer.  This doesn't bear the slightest resemblance to ANYTHING in real life.

Rule 9:  Life is NOT divided into semesters.  You don't get summers off and very few employers are interested in helping you find yourself.  Do that on your own time.

Rule 10:  Television is NOT real life.  In real life people actually have to leave the coffee shop and go to jobs.

Rule 11:  Be nice to nerds/people.  Chances are you'll end up working for one.

If you can read this ... Thank a Teacher.

If you can read this in English ... Thank a Soldier!

And for life and everything else you have ... Thank God!

Mr. Sykes had additional rules, three (3) of which are:

Rule 12:  Smoking does not make you look cool.  It makes you look moronic.  Next time you're out cruising, watch an 11-year-old with a butt in his mouth.  That's what you look like to anyone over 20.  Ditto for "expressing yourself" with purple hair and/or pierced body parts.

Rule 13:  You are not immortal.  (See Rule No. 12).  If you are under the impression that living fast, dying young and leaving a beautiful corpse is romantic, you obviously haven't seen one of your peers at room temperature lately.

Rule 14:  Enjoy this while you can.  Sure parents are a pain, school's a bore, and life is depressing.  But someday you'll realize how wonderful it was to be a kid.  Maybe you should start now.  You're welcome.

To read an excerpt of "50 Rules" go to:  http://us.macmillan.com/50ruleskidswontlearninschool.

Remember we all have a 70% chance of needing care before we die.  Not a pleasing thought.

The number of adult children over 50 who are caring for their parents is estimated to be 10 MILLION in 2008.

What does it cost the caregiver to provide this service to their parents?  A Wall Street Journal article on June 14, 2011¹ estimates the cost to the care providers who are 50+ averages over $300,000.  This comes from lost wages, pension and social security benefits.  There is no measure for the increased stress, depression, and other physical ailments experienced by the caregiver.

If you plan to be the caregiver, understand the personal, financial and physical cost to you.

There are planning options that may lighten the burden for a family caregiver.  Discuss your family situation with a Certified Elder Law Attorney to explore ways to make the best of a difficult family situation.

_________________

¹ "Toll of Caring for Elderly Increases," by Kelly Greene, The Wall Street Journal, June 14, 2011, page D3.

Father's Day is June 19.  It took fathers a good deal longer than mothers to get their rightful national recognition.  It wasn't until President Johnson's proclamation, in 1966, that the holiday was officially recognized.  With Father's Day just around the corner, let's give our dads their due with this perspective on fathers and children:

4 years:  My Daddy can do anything!

7 years:  My Dad knows a lot...a whole lot!

8 years:  My father does not know quite everything.

12 years:  Oh well, naturally Father does not know that, either.

14 years:  Father?  He's hopelessly old-fashioned.

21 years:  The old man is so out of date.

25 years:  He knows a little bit about it, but not much.

30 years:  I must find out what Dad thinks about it.

35 years:  Before we decide, we will get Dad's idea first.

50 years:  What would Dad have thought about that?

60 years:  My Dad knew literally everything!

65 years:  I wish I could talk it over with Dad once more.

To every father, grandfather and great-grandfather:  Enjoy your day!

This spring, a family reported to me that a loved one in a nursing home had trouble getting her medications in balance.  She was placed in a hospital to help sort the problem out and after her stay, she was even worse and never spoke again.  What a tragedy.

"When a loved one moves into a nursing hone, the support of family and friends is particularly important.  This is especially true when the nursing home patient has dementia and can't adequately advocate on his or her own behalf.  A newly released report from the Office of the Inspector General for the Department of Health and Human Services makes clear just how crucial it is for families to monitor and ask questions about medications that such patients receive.

Source:  CNN Opinion (May 31, 2011) 

and the National Academy of Elder Law Attorneys

Full OIG Report

I had my sprinklers turned on this spring.  That was the easy part.  One evening I was at my kitchen sink, washing dishes, listening to the radio and noticed my back yard had turned into a lake.  A hole the size of a basketball was gushing water from a sprinkler pipe.  After weeks of having my back yard dug up and pipes replaced by the sprinkler people, they told me it is not the sprinkler system that does not work.  It is the pump for my well.

Let me tell you the obvious.  I know nothing about water systems and do not really want to know.  I just want someone to fix it (and of course yesterday).

So, I called the well man.  He came and told me there was a small part that was frozen last winter.  He replaced it and everything now works.  I've had the pump for 10 years and no one ever told me I needed to do something special to keep it warm in the winter.  I had the part fixed and now I am ready for a hot summer and a green yard filled with flowers and vegetables.  That part I am happy about.  The "fix-it" part made me grumpy for a few moments.

How does this apply to you?

Well, when setting up an estate plan, you do everything you can think of at that time to have the best plan in place to help now, and most importantly during the bad days (should you be unable to handle your affairs or upon death).  The plans we set up for our clients focus on protecting their independence, assets and families.

Then some time passes, and that original plan does not work as well as it did originally.  Just like my pump, some part needs to be fixed and it is not your fault.  The law changes, your health changes, your relationships with people change and your money changes.  Usually one of these four things changes every 3 to 4 years.

What should you do?  I suggest you pull out your planning documents and review them.  Do they still reflect how you want your affairs handled?  Are all your assets titled properly and do you have the proper beneficiaries listed on your life insurance, retirement benefits and annuities?

If not, I encourage you to set up a review with your estate planning professional.  Do it now!  Or you can wait, have a mess that is harder and more expensive to fix, and only find out about it when you really need the plan to work (like the lake in my back yard).

By Joseph S. Karp, Florida Bar Certified Elder Law Attorney

The Alzheimer's Association and The National Institutes of Health yesterday announced a new approach to diagnosing Alzheimer's Disease. They are recommending inclusion of people with even mild memory loss that appears to be Alzheimer's-related. The rationale: Identifying the disease earlier will allow whatever any available treatments to be administered sooner, when they might be more effective.

Unfortunately, presently there is no preventive method and no cure. And that means the legal approach to the issue of Alzheimer’s Disease must remain the same: Prepare, prepare, prepare. In my Florida Elder Law practice, I help many patients and families establish the legal and financial plans necessary to deal with what is to come. These plans can help smooth out what will surely be a challenging road, and avoid unnecessary trauma. These plans must be put in place while the patient is competent. Once the patient is severly incapacitated, a costly and complicated guardianship may have to be instituted.

Below are some of the steps that should be taken when the diagnosis is Alzheimer’s:

Create a Durable Power of Attorney

A Florida Durable Power of Attorney will empower one or more people to handle the patient’s financial affairs when he/she can no longer do so.  Florida recognizes two types of Durable Power of Attorney: The contingent power gives the agent the ability to act only when the patient is incapacitated. The Immediate power allows the agent to act on the individual’s behalf as soon as the document is executed. A Florida Certified Elder Law Attorney can advise as to which type best suits the given situation.

Note that a Florida Durable Power of Attorney does not automatically authorize an agent to handle every type of matter. Specific powers must be authorized; for example, the ability to buy or sell property. One power someone diagnosed with Alzheimer’s Disease should include is the power to make gifts. This may become very important if and when the patient seeks to qualify for longterm care Medicaid benefits.

Create Advance Health Care Directives

Someone diagnosed with Alzheimer's Disease should establish Advance Health Care Directives. There are several types:

• Florida Health Care Power of Attorney(also known as the Health Care Surrogate). This document empowers one or more persons to make the Alzheimer's patients medical decisions when he or she is not capable of doing so. If the patient lacks a valid Health Care Power of Attorney and is not competent to communicate his/her own wishes, Florida Statutes determine who has the power to make the decisions. A worst-case scenario may involved a court guardianship. It is crucial that the Health Care Power of Attorney include a HIPAA release.

• Pre-Need Guardian Designation: It is also a good idea for the patient to name who he/she would like to serve as guardian, if for any reason guardianship must be commenced. Although the court is not bound to this request, it is heavily considered.

• Living Will: This document specifies the kind of life-extending care a person does or does not want if in a terminal or end-stage condition, or in a persistent vegetative state. The Living Will can be a great comfort to family members if they are ever called on to make these difficult decisions on behalf of the patient.

Review titling of assets of the patient and the spouse, and consider Medicaid Planning and Veterans Benefits Planning for Longterm Care

If a patient lacking adequate longterm care insurance requires custodial nursing care in the future, the family may apply for Florida Medicaid benefits. The ownership of assets plays a large role in determining whether the patient is qualified, and can make the difference between losing and preserving assets. Also, if the patient is a veteran or the widow of a veteran, eligibility for V.A. Benefits for home care, assisted living facility or extended nursing home care should also be explored.

Create a Will

A Florida Will directs to whom assets are transferred upon the patient’s death. Note that the will does not direct where assets go if they are jointly held or payable on death to a designated beneficiary. It may also be advantageous for the patient to establish a Trust. A Florida Certified Elder Law Attorney can discuss which approach best suits the situation.

If the patient is married, review the spouse's assets and estate plan

This is a journey that the spouse takes along with the patient! The spouse should establish an estate plan to protect him/her as well as the patient. If the spouse predeceases the patient, any inheritance the patient receives may result in termination of Medicaid benefits or a period of ineligibility. If the spouse's Health Care Power of Attorney and Durable Power of Attorney name the spouse as agent, these documents obviously will need revision, too.

We are unfortunately not yet at the point where Alzheimer’s Disease can be prevented, or cured.  We do however have the tools to minimize the legal and financial disruptions that ensue.

By Joseph S. Karp, Florida Bar Certified Elder Law Attorney

As a Florida elder law attorney, I find many people are confused about Advance Health Care Directives. Of course, that could be because so many people prefer to avoid the topic altogether!  And on a personal level, I understand that:  no one really wants to contemplate the possibility of being disabled and unable to communicate his own health care wishes! Little wonder then that there's a big disconnect between what Americans say and what they do about health planning. According to a 2006 Pew Research study, most Americans think they should be free to manage their own end-of-life decisions, without government interference. But how many of them have a Living Will that would keep them in control of their medical destiny? A paltry 29%.

There was a big uptick in interest in Living Wills and other Advanced Health Care Directives following the Teri Schiavo incident in my home state, but  that sense of urgencyseems to have tapered off. To remind the public of the importance of making plans for health care decisions, April 16 has been declared National Health Care Decisions Day. It's the fourth annual, actually.

Here's a brief explanation of what each type of Advance Health Care Directive does, and the situations to which each apply.

Living Will 

Florida Statutes section 765.03 lays out the rules for Living Wills. A Living Will is not just a "pull the plug" document as many believe: It documents the kinds of treatments you don't want - as well as those you do want - if you are in a terminal or end-stage condition, or in a persistent vegetative state. 

Health Care Power of Attorney

The Health Care Power of Attorney allows you to designate another person to make your medical decisions if you become incapacitated and cannot express your own desires for medical treatment. The disability need not be permanent - for example, you could be under general anesthesia. The Health Care Power of Attorney should also contain language granting your agent and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, pursuant to the federal HIPAA laws.

Do Not Resuscitate Order

A DNRO is signed by a physician stating that you have a terminal illness. The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. .

Pre-Need Guardian 

Guardianship is a court proceeding in which a guardian exercises the legal rights of the incapacitated person who is unable to exercise his own rights.  A Guardian may be an individual, or an institution such as a bank trust department, with the authority granted by the court to care for an incapacitated person and/or the incapacitated person’s assets. You may name a “pre-need” guardian who you wish to make your health care decisions if you ever become the subject of a guardianship. The Florida court genearlly honors such a request unless the pre-need guardian you've designate is found to be unqualified or does not wish to serve.