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

Palliative care in a nursing home setting

A person who moves into a nursing home is referred to as a “resident” for a reason — this is their new home. At the end of life, the health care representative (or the patient himself) may be wondering whether there is a way to ensure that he can “die at home” in his bed instead of in a hospital.  Paving the way for a quiet end will require teamwork and collaboration between the health care decision-maker and the nursing home’s decision-makers.  Here are some tips.

The Centers for Medicare and Medicaid Services (CMS) issued a specific, lengthy, updated policy on this issue. ” The facility is required to establish, maintain, and implement written policies and procedures regarding the residents’ right to formulate an advance directive, refuse medical or surgical treatment and right to refuse to participate in experimental research. In addition, the facility is responsible for ensuring that staff follow policies and procedures.” The policy goes on to state: ” RIGHT TO REFUSE MEDICAL OR SURGICAL TREATMENT. If a resident (directly or through an advance directive) declines treatment (e.g., refuses artificial nutrition or IV hydration, despite having lost considerable weight), the resident may not be treated against his/her wishes. If a resident is unable to make a health care decision, a decision by the resident’s legal representative to forego treatment may, subject to State requirements, be equally binding on the facility. A facility may not transfer or discharge a resident for refusing treatment unless the criteria for transfer or discharge are otherwise met.

”  If a resident’s refusal of treatment results in a significant change in condition, the facility should reassess the resident and modify the care plan as appropriate. The facility is expected to assess the resident for decision-making capacity and invoke the health care agent or legal representative if the resident is determined not to have decision-making capacity. Once the decision-making capacity is assessed, the facility is expected to determine and document what the resident is refusing, to assess the reasons for the resident’s refusal, to advise the resident about the consequences of refusal, to offer pertinent alternative treatments, and to continue to provide all other appropriate services. The resident’s refusal of treatment does not absolve a facility from providing other care that allows him/her to attain or maintain his/her highest practicable physical, mental and psychosocial well-being. For example, a facility would still be expected to provide appropriate measures for pressure ulcer prevention, even if a resident has refused food and fluids and is expected to die.”

What can the advocate do? The health care representative needs to find out what the nursing home’s policy is about “Do Not Hospitalize” orders (DNH). Are there certain circumstances in which the facility will require a transfer to the hospital? If the patient stops eating, and weight loss is inevitable, and the patient had previously signed an Advance Directive/Living Will, how will the nursing home accommodate a request to refuse a feeding tube?  What are the facility’s obligations to patient safety? Discuss the process for periodic revision to the  Plan of Care so that the Goals of Care are simply “comfort care” rather than “treatment” of new conditions? Find out the process for utilizing palliative care. Find out how to make sure that every single member of the nursing staff will know that the patient is never to be transported to a hospital in the event of respiratory arrest, cardiac arrest, refusal to eat, etc. Of course, make sure that the physician has entered a DNR (Do Not Resuscitate) order in the patient’s chart. Also, discuss the process by which the facility would normally call in a medical specialist; the patient has the right to refuse such unnecessary evaluations if the goal is “no treatment.”

Each case is unique, and the goal is for the entire team – family, nursing, social services – is to aide the patient to fulfill their wishes and remain as comfortable as possible as the end approaches.

Call for advice and representation in elder care planning and end of life planning … 732-382-6070

We Respect Our Aging Parents by Helping Them Plan for Future Needs

Could this be you? You’re in your thirties or forties, with several active children and a busy social and business life. You’ve got volunteer activities and school programs to keep track of. Your parents are in their seventies or eighties, have their own home, and appear to pay all their bills when due. You have no idea what your parents’ income or assets are because they don’t want to bother you about it, and they seem to be able to manage on their own. You and they have always known that they would be able to depend upon you for loving care and support if the need arose. You and they have always known that if necessary, you will arrange to take care of them, and you will try to keep them in their home.

Then one day you start to realize that your mother is asking very confused questions, and is calling you repeatedly to ask the same thing over and over, not remembering your recent answers. You visit the house and you find that she’s letting the mail pile up, and your father seems unable to communicate clearly. A neighbor calls you out of concern that they’re not able to take care of themselves. Or you get a frantic phone call informing you that one of your parents has had a terrible stroke, is in the hospital  and will need nursing home care, which can cost $11,000 a month. You wonder whether you’ll be able to keep them at home. And you feel so disrespectful when you try to step in and manage the elder care situation.

Sound familiar? When these problems develop, they can be readily handled if the family planned ahead. Without planning, these problems are likely to become a major crisis.

The longer we live, the higher the risk of catastrophic illness and expense. What can you do to protect your parents, and prevent the chaos which so often occurs when a person becomes severely, irremediably disabled? You can encourage your parents to do what I call Disability Planning. Careful planning is like having insurance on your home – you wouldn’t dream of not keeping up that policy, even though, in your entire lifetime, you probably won’t ever put in a single claim. What follows is a discussion of the key elements of disability planning. It must start with asking questions, and helping your parents to share information with you so that you can take care of them when the time comes.

ASK THEM TO UPDATE THAT OLD WILL. If one spouse is severely ill, such as with Alzheimers’ Disease, it may not be a good idea for them to inherit their spouse’s entire estate outright. The other spouse may want to divide the estate between the ill spouse and the children, or to create a Trust to receive the inheritance. It’s probably time to select someone else as the Executor also. And be sure to plan carefully for the future care of a dependent disabled child by considering a  Supplemental Needs Trust.

ASK THEM TO SIGN A DURABLE POWER OF ATTORNEY. If your parent becomes completely incapacitated and can’t manage their affairs, but never designated an Agent by signing a Durable Power of Attorney, no one will be able to carry out transactions with the parent’s assets. The house can’t be sold; gift transfers to children or spouse can’t be made; life insurance can’t be cashed in; contracts can’t be signed; stocks can’t be sold; etc. It will be necessary for someone to file a legal action for a Guardianship, in which they seek to be appointed as the parent’s Guardian by the court. Unfortunately, sometimes there is bitter disagreement among family members. If there is any disagreement in the family as to who should be the Guardian, there may be a drawn-out, costly legal battle, during which the court will designate a third party to be the guardian until the final decision is made. Your parent will have no control over the outcome. A comprehensive Durable Power of Attorney should be signed which covers everything from banking to life insurance, 401K’s, gift transfers and real estate. It can be made to be effective as of the time it is signed, or it can “spring” into effectiveness at some specified later date or condition. Your parent can leave their Power of Attorney with their attorney, to deliver to the Agent when some specified condition occurs.

ASK THEM TO SIGN HIPAA FORMS AND A LIVING WILL OR A HEALTH CARE PROXY. Living Wills (also called “advance directives”) express a person’s wishes on whether life supports should be used if the person is in a severe, vegetative or terminal condition, or has advanced brain diseases which leaves him/her unable to interact with others in a meaningful way, and then suffers a life-threatening event like a heart attack, kidney failure, breathing failure, or inability to swallow. A Health Care Proxy document doesn’t express advance wishes, but it does appoint the designated decision-maker who would make all the health care decisions if the patient could not communicate with his/her doctors. The HIPAA form will immediately enable a health care provider to share confidential information with the trusted person who is trying to help out. HIPAA.

What happens if there’s no advance directive or proxy?

Typically, the doctor will turn to the spouse for guidance, consent and decision-making. In a case of no spouse, there is increased risk of disagreement if there’s more than one child. One will see improvement where the other sees hopelessness. One will be willing to implement the advance wishes the parent expressed verbally in conversation; the other won’t agree because he can’t let go. It is the Living Will which stands as the clearest expression of the parent’s wishes regarding resuscitation and other life supports, regardless of the personal preferences of other family members.

COMPILE AND CONSOLIDATE THE ASSETS. Your parents need to know what they have in order to plan for how they’ll pay for care in the event of disability. They should save five years’ of bank records, cancelled checks and financial statements, as well as their filed income tax returns.

DEVELOP A PLAN FOR LONG-TERM CARE. Care can be provided in the home, in an Assisted Living group residence, or in a nursing home. Unless the person is eligible for Medicaid, s/he’ll be paying privately for care. Can your parents still take care of each other? Who should be brought in? To be eligible for Medicaid, the applicant’s assets must be below specified levels and there is a complex network of laws that typically need a lawyer’s interpretation. Since Medicaid doesn’t pay for 24/7 care in the home, careful planning means looking into all the ways your parents could finance their care at home, whether that’s with a reverse mortgage or other means.

The Medicaid applicant can be asked to provide the last 5 years’ of documentation of the value of each of the assets, copies of all cancelled checks, as well as proof of what was done with each of those assets. The more disorganized your parent’s portfolio, the harder it will be for you to provide the necessary documentation. Banks are now charging high fees to retrieve bank records for customers.

DON’T JUST GIVE EVERYTHING AWAY WITHOUT A PLAN. Also, they should not make gifts of their assets without advice from an attorney familiar with the consequences of doing so. So if they do wish to transfer assets to the children, they must be sure to get advice from an elder law attorney with substantial expertise in this area.There are many different strategies which can be utilized to protect the family’s assets. Sometimes it is a good idea to transfer full or partial ownership of the house, and sometimes it isn’t. A lot depends on the other assets available to pay for care if it is needed. Also, a lot depends on the family structure and the impact on a potential Medicaid application. Once assets are given away,  the parents may not have as many choices as they need for different kinds of care which have to be paid for privately.

In conclusion, you show your love and respect for your parents by helping them to plan for their future protection. Careful planning is the key to success when it comes to your parents’ personal wishes, their financial security, their family’s peace of mind.

Call us for help in planning for a good old age ….. 732-382-6070



Governor Christie vetoes bill allowing Medicaid payment for end-of-life counselling

Governor Chris Christie has vetoed A-4233/ S-2435 , which means that NJ doctors treating Medicaid can’t get paid for counselling their patients on end of life planning. Perhaps he’s pandering to the absurd claims made in the 2008 Presidential election that by paying doctors to assist their patients to understand the treatment alternatives and choices about foregoing treatment at the end of life, the government would be running “death panels.” Given that he signed the POLST law in 2011, this decision is inconsistent with what the state evidently wants.

New Jersey adopted the Advance Directives law back in 1991. Under the law — N.J.S.A. 26:2H-53 to 78 –, any person who has capacity can write up a statement of their wishes with respect to the use of life supports. The document was called a “Living Will” because it speaks for the person after they lose capacity to express their wishes. Essentially, these documents say that if the patient is mentally incapacitated AND is terminally ill, has severe and irreversible brain damage or is close to death, AND suffers a life-threatening condition (such as kidney failure, inability to swallow, respiratory failure) whereby their life can only be sustained by the use of artificial or mechanical means, THEN the person does not want those mechanisms to be used since they will prolong life but will not solve the underlying chronic condition.advance_directives

I have to say that the vast majority of my clients tell me that if they were at a stage of life that they no longer had capacity and were already terribly debilitated, they would not want their health care agents to initiate the use of such life support if one of their vital systems failed. I counsel clients on these issues all the time, and answer questions from their agents about just what a certain health care document means. Wouldn’t it be sensible to enable them to discuss these issues with their physician as well?

Medical visits are unfortunately getting shorter and shorter. A meaningful discussion of advance directives can’t happen within the ten or fifteen minutes often allocated to an annual checkup. Why would the Governor have disallowed payment to the doctor for an extended or special visit to help the patient understand these issues? The state’s fiscal estimate showed a truly negligible cost to the state, with full federal reimbursement likely.

Call us for advice and representation concerning advance directives and elder care … 732-382-6070

What are HIPPA forms and why do you need them?

What is known as “HIPPA” was enacted by Congress as the Health Insurance Protection and Portability Act of 1996.  42 USC 1320d-6.  It is designed to protect the confidentialiy of a patient’s medical information. The extensive federal regulations are found at 42 USC part 160.

A side effect of all of this good confidentiality is that  family members who are actively involved in a patient’s care can find that they just can’t get any information when they call. I ran into that at a major NJ hospital when  my aging mother was admitted for surgery. They needed the doctor to sign a document authorizing me to read the chart, and they had no form for my mother to sign to give me access. When my father was in a rehabilitation facility in NYC and could only get around in a wheelchair, he had to be taken down to the medical records office at the far corner of the basement floor of the building to find the right clerk who, if she was actually there, could give him the form to sign to give me access to information. It was ridiculous.

Attached is the HIPPA form that we give to our clients to use when they sign their estate plans.   HIPAA Form                It can be signed by the patient or by their designated legal representative. You can sign these forms and give them to every doctor, hospital, clinic, or facility you are treated at. Although they will give you a form to sign in which you acknowledge that they won’t share your information with anyone except what’s allowed by law, THIS form actually tells them who they ARE authorized to share your information with. At the top you will see a line to list the names of the people you authorize the health care provider to share information with. Put their phone numbers as well. You need to indicate the purpose (“to help me”) and whether it has any expiration date.

The HIPPA release is NOT a health care proxy. Unlike a health care proxy or power of attorney, it does not give anyone decision-making authority over you.  It doesn’t appoint a decision-maker. It is not an advance directive or “living will” or any kind of instruction directive. It merely cuts through the red tape so that your first responders and involved family members can get the information they need directly from the health care providers. If the patient is already incapacitated, the health cae proxy can sign these releases on the patient’s behalf. If a legal Guardian has been appointed by the court, they can sign these releases if they want to give another close person access to the information.

Whether managing your own health care or someone else’s, making sure that all members of the “team” can talk to each other is crucial. The HIPPA form is one of the arrows in this quiver.


For legal advice on elder care and health care crisis planning, call for appointment … 732-382-6070