The Tender Talk about End-of-Life Planning

A regular part of the estate planning process involves a discussion with the client about selecting a line up of trusted individuals to serve as the client’s medical decision-makers. If the doctor determines that the patient has become incapacitated, there needs to be a designated proxy who can act on the patient’s behalf. Ideally, this person was selected by the patient beforehand in writing, because, otherwise, dreadful and lengthy court battles can ensue. I explain to the client that they need to choose the right person for this immensely difficult and emotional job. The person who might be just fine as Executor of the estate might be a poor choice as health care proxy.  The health care proxy will be responsible for the day-to-day health care decisions — should you continue to take this medication? should you have this elective surgery? Should you get a bridge or an implant when your tooth  is extracted? — as well as the major ones when life itself is threatened — should you be placed on a ventilator? should a feeding tube be installed? should the pacemaker battery be replaced?.

Many people have strong feelings about whether they would want certain mechanical means used to sustain their life if they become incapacitated and their quality of life has become terribly diminished due to various severe and chronic disabilities. The means to express these wishes is called a “Living Will” or “Advance Directive for Health Care.”  Essentially, the document speaks for a patient who can no longer express their wishes.

Advance Care Planning is the process of talking with your health care team and your trusted individuals about what you would want if certain things occur. In the hospital setting, the patient is asked to provide instructions which get written on a special form called a POLST that is then signed by the doctor and is placed in the chart as a physician’s order.   If a “living will” was previously signed, the instructions on the POLST form likely will match up with that document. But a patient can of course change their mind. The discussion needs to address the specifics of the condition being treated, the prognosis and potential outcomes, and the patient’s worries. The patient may feel that they never want to be maintained on a ventilator or kidney dialysis, but that they would still want artificial feeding and hydration if they could no longer chew or swallow. Alternatively, the patient may feel that they would want to be maintained on a ventilator no matter what, even if they could no longer interact with those around them due to severe incapacity, and even if this could go on for years.

If the patient is already incapacitated, it could be the designated health care proxy or the legal guardian who is engaging in these delicate discussions with the physician. Sometimes, shorthand is used such as “do you want a DNR put on his chart?” This decision-maker has the authority to complete the POLST on behalf of the patient. Either way, it is important that these serious issues be discussed in advance, since it can be so very difficult to make the necessary choices in the midst of a medical crisis if there was no prior guidance.

Call us for advice regarding estate planning, health care decision-making issues and elder care planning …….. 732-382-6070

SS to allow predesignation of future Representative Payee

Congress has passed, and the President has signed,  the “Strengthening Protections for Social Security Beneficiaries Act of 2018”.  This statute makes changes to the Representative Payee system of the Social Security Act.

A Representative Payee is appointed by the Social Security Administration to handle the benefits of a person whom the SSA deems incapable of managing his or her own benefits. Examples are adults under guardianship, minors, and persons who suffer with severe cognitive or physical disabilities. A Representative Payee is like an informal Trustee — s/he is expected to keep the SSA income in a designated account [under the Social Security # of the incapable individual, of course] and spend it only on the SS recipient, unless there is a court order that allows other spending. The SSA sends out an annual report statement to the Representative Payees, who are expected to complete it, sign it under penalty of perjury, and return it to the SSA. Apparently there are insufficient resources to audit and monitor the millions of such reports that are filed each year, so there will be federal grants to state and local auditing entities..

Under Secn. 201,  Social Security or SSI recipients over age 18 can designate “at any time” a person — but not an organization — who they want as their Representative Payee should the SSA determine that such appointment is required. The Social Security Administration must select the designated individual as Rep. Payee with certain exceptions, most notably, if the person had been convicted of any of a wide range of crimes. Even that exclusion can be waived in certain cases involving a designated person who is in a close family relationship to the benefits recipient or in the “best interest” of the benefits recipient. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

The Act doesn’t specify the form of document that the person needs to sign when making his or her own designation.  I think that it could be included as a paragraph in their Durable Power of Attorney. A State Guardianship Court could order that the Guardian have preference for appointment as a Representative Payee. Section 201 amends 42 USC sec. 405 (j)(i) by adding (C) (1) to the end of that subsection.

Within 18 months the SSA is required to issue regulations. Among other things, there must be forms provided, and the regulations must specify the information that beneficiaries must provide to SSA about the designated individuals. Also, the SSA will be required to notify beneficiaries who have designations annually with the names of the advance designees. The forms and instructions must be published by December 13, 2019.

Another useful amendment is found in Secn. 102. Under this amendment,  the Spouse or parent need not become Rep Payee for someone whose benefits they handle, if they live in the same household. This should make things more convenient for most cases. Of course, in a very bad situation, there could be a need for someone to intervene on behalf of the vulnerable adult in that household, but such an action can be initiated by any interested party if they become aware of the need for a protective arrangement.

Link to the statute permitting designation of a representative payee in advance is below:

https://www.congress.gov/bill/115th-congress/house-bill/4547/text

The law is effective two years after the date of signing, which will be April 13, 2020.

Pre-designation of a Representative Payee is just one component of a senior care and disability protection plan. Updated estate plan documents, powers of attorney, beneficiary adjustments, and other steps may be appropriate depending on the situation.  Each situation is unique and has its own special concerns.

For legal advice and assistance with elder care and disability planning, call us at ………. 732-382-6070

 

Hospital’s Failure to apply for charity care for psychiatric emergency patient leaves hospital holding the bag

DRAFT   MUST REWRITE    text from daily briefingHEALTH CARE LAW

New Jersey has a Charity Care program which pays for hospital care for uninsured individuals who meet the stringent income and asset requirements and also file an application. If an eligible individual enters the hospital as an emergency room admission, the hospital is required to prepare and submit the application and to take measures to obtain the necessary verifications. If an individual is admitted to the hospital without first going through the emergency room, on the other hand, the individual bears that responsibility. The application can be filed by the individual or a responsible party and the hospital, at its discretion, can accept the application up to two years after discharge, which is also the deadline for a hospital to submit the claim to the state program for processing. The regulations are found at N.J.A.C. 10:51-11. This issue was addressed in the recent Appellate Division decision of Newton Med. Ctr. v. D.B.

The patient had been  involuntarily committed to the hospital’s short-term care facility on an emergent basis when the county PESS determined that he was a danger to himself and others. He met the financial qualifications for charity care, and filled out an application. However, due to his condition, he did not submit all the needed documentation within the required time period, and evidently did not seek the help of another person to gather and submit the required verifications. The hospital eventually sued him for the substantial unpaid bill. He argued that the hospital had a duty to submit the application on his behalf because his emergency psychiatric hospitalization placed him in the same category as a medical patient coming in through the emergency room. Although the trial court ruled against him, the Appellate Division reversed.

In a decision which discusses in depth the history and purpose of the Charity Care Program, the court held that the statute did not explicitly limit the category of emergency room hospitalizations  to medical needs as opposed to  psychiatric need, and that the Legislature intended that all patients in such desperate straits who enter a hospital for emergency treatment be relieved of the responsibility to submit their own applications. The Court placed the responsibility upon the hospital staff to follow the procedures mandated in the regulations for all such patients, and dismissed the collections action.

Admission to any hospital  raises the need for a patient to have an advocate and assistant watching out for his or her interests. Careful planning with powers of attorney, records release authorizations, HIPPA authorizations and health care proxies, including psychiatric health care proxies, can add a layer of protection for an individual in the throes of severe illness.

Call us for advice on elder & disability issues … 732-382-6070

Homemade Powers of Attorney can create expensive legal problems

I ran into a situation recently that I thought I’d share with my readers since it’s the type of thing that happens over and over again. The Elder person is living in New Jersey but owns real estate in another state that needs to be listed or sold because he is applying for Medicaid to pay for his nursing home. The person has Alzheimers Disease and no longer has capacity to sign legal documents. The person who takes care of everything for him up here in New Jersey holds a power of attorney that they made using an “internet form.” It is titled “General Durable Power of Attorney Effective Upon Execution,” and was signed by the elder a few years ago in front of witnesses and a notary.

It sounds like this document gave authority to the agent right away, right? The problem is that the very first paragraph then says ” I ____ designate ____ to act for me, if I should become disabled or legally incapacitated. This document shall become effective upon the date of my disability or legal incapacity and shall not otherwise be affected by my disability or incapacity.” The first sentence creates a Springing Power of Attorney. The second sentence is a mixture of language from Durable Power of Attorney and Springing Power of Attorney, an obvious conflict.

The named agent found that they had to produce current doctors’ opinion reports attesting to the elder’s incapacity. The agent has lost weeks and weeks of time gathering this evidence and submitting it to insurance companies, banks etc. for legal review.

And there is another problem: in the state where the property is located,  springing powers of attorney are not valid. The agent learned this when they hired the real estate attorney there. So in order to sell the property, it will probably be necessary to file a guardianship action. And generally speaking, you can’t initiate a guardianship action in one state if the individual is permanently residing in another state …. you initiate it where the individual resides and then have to go through a separate set of proceedings in the other state. Needless to say this has all created a complicated and potentially expensive legal tangle that involves two states and two lawyers and substantial delay.

As I like to say, careful planning [with legal advice] can prevent a crisis.

Call us for advice on estate planning and long-term care planning … 732-382-6070.

Family caregivers and decisionmakers in the complex care of dementia patients

Tha AARP and the National Alliance for Caregiving report that there are 40 million Americans taking care of family members with dementia such as Alzheimer’s Disease, cancer, and other debilitating chronic diseases, or physical disabilities, and that 25% of the caregivers are under 35 years old. The medical issues can be complex. There can be myriad medications to manage and the side effects can impact the patient’s cognitive ability, response time and behaviors. The family caregiver needs to be companion, advocate, assessor of unusual clinical responses, emergency manager, monitor of symptoms, transportation provider, and assistant for decision-making. They may or may not have received specific training in the care the patient requires. Should the caregiver also have authority to actually make decisions on behalf of the patient? Maybe yes, maybe no. It depends on the circumstances.

The line between the work of caregiving and the authority for decisions can get blurry. It’s important to discuss this subject when preparing powers of attorney.  At times, one child is given authority as Power of Attorney and Health Care Representative, and then also moves in and becomes the 24/7 caregiver when the parent can no longer safely live on their own. If the same person is responsible for all caregiving and all financial matters, it can be truly overwhelming and there could be a loss of objectivity.When a person requires 24/7 care and a devoted family member is the full-time caregiver, expanding the team and  dividing up the responsibilities can go a long way to make the job more manageable, and assure that the whole picture is being seen. Perhaps one person should have authority over the assets, income, bills and contracts, and another person should have responsibility for health care decision-making. Sometimes the person providing the live-in care should be the health care decision-maker, but not necessarily.

To guarantee broader input and communication, a patient may want to divide up the roles. But again, this is simply not always possible. The family may be small, or most of the family may be far away, or there may be other family dynamics in play.

There are ways to ensure collaboration between caregiver and the designated agents. For example, the financial Power of Attorney and the health care proxy or advance directive documents documents can obligate each designated agent to  share information  with the other and to consult with each other. The person who is the general agent under the power of attorney could be given the authority to delegate some power to the person who is the live-in caregiver so that they can manage some reasonable size bank account on a day to day basis in case there’s a need to buy things. Or they can be given authority to utilize  a debit card on the patient’s bank account with a certain limit.

Another idea is that the financial power of attorney document can expressly allow a family member to be hired as a live-in caregiver, and can direct the Agent to pay a wage that’s in line with similar occupations. When caregiving is paid for, it eases the economic pressures on the care giver, but it does raise other issues such as wage & hour laws and potential Medicaid scrutiny if the parent runs out of money within 5 years and applies for Medicaid benefits.

No matter what, either the patient or their authorized agent may want to sign HIPPA release forms for certain purposes so that the caregiver can access the relevant health care information that’s needed for them to do their job.

For legal advice on elder care planning, caregiver employment, and estate planning, call us at … 732-382-6070.