after the diagnosis (erica f. wood)

8/6/2019 After the Diagnosis (Erica F. Wood)

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After the Alzheimers Diagnosis:

Legal Planning

Erica Wood, Esq.

Commission on Law and AgingAmerican Bar Association

National Press Foundation

May 24, 2011


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Todays Talk

Key steps to get affairs in order after diagnosis of

serious illness such as Alzheimers disease

Paying for health care and support

Managing health and personal decisions

Managing money and property

Other key planning considerations Last resort: guardianship

Get legal documents in order


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Plan How to Pay for Health Care

and Support Needs Employer-based disability benefits

Some employers have short-term or long-term disabilityinsurance

Social Security disability benefits Recent SSA decision to fast track disability decisions

for individuals with Alzheimers disease

Supplemental Security Income benefits Means tested program by SSA

Veterans benefits Broad array of financial benefits


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Plan How to Pay for Health Care Needs

Medicare Primary payer for individuals with Alzheimers disease; eligible at

65 or after 24 months on SSDI

Private health insurance Employer-based or private insurance

Long term care insurance

Medicaid Federal/state program for low income individuals and children

Each states program is different

Veterans benefits Broad array health care benefits, including long-term care benefits

and nursing home care


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Managing Health& Personal Decisions

At some point, someone else will have to

make health care decisions for an individualwith dementia

Who will be the decision maker?

What guidance will be provided in advance?

How will it be communicated?


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Families decide(Devolved/Default)

Courts

decide(Displaced)

Individual(Directed)

Others

designated by

individual(Delegated)


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Health Care Advance Directives

In the 1970s -1980s, states generally enactedmultiple laws: Living Will, Health Care Powers of

Attorney with overlap from consent laws.

Today about half the states have combined/comprehensive Advance Directive laws

But still much variation in detail, especially focusedon forms.


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Types of Advance Directives

Living Wills

Directive that provides guidance or instructionabout the care and decisions wanted

Usually includes specific instructions on life-sustaining conditions

Power of Attorney for Health Care

Choose an agent/proxy (and successor) to makehealth care decisions if unable to make them

Should be someone who can be a strongadvocate and willing to make difficult decisions


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What ADs Can Do

1. CAN be an important part of acommunication process in advancecare planning

2. CAN help you stop and think andDISCUSS.

Less about specific medical decisions, more

about GOALS, VALUES & PRIORITIES:3. CAN empower and give direction if

reflective of the patients voice.Not the legislatures canned language.


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What ADs CantDo

Cant provide cookbook directions.

Cant change fact that dying iscomplicated.

Cant eliminate personal ambivalence.

Cant be a substitute for Discussion. Cant control health care providers.


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30 years of Research on Advance Directives

1. Most people dont do.

2. Hard to understand the forms.

3. Standard form not useful guidance.

4. People change mind.

5. Agent/proxy slightly better than clueless.

6. Health care providers clueless about the

directive.

7. Even if providers know directive exists,

its lost in space.

8. Even if in the record, its still lost in space.


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Communication is Key to Advance Planning

Not every medical decision can be anticipated

Communicate wishes, quality of life goals,values and priorities that are important

Discussions are difficult but most important forloved ones and the individual with the disease


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Guidance for Health Care Agents, Proxies

Steps in making medical

decisions

Working within healthcare system

Addressing disputes

Special challengesin medical decisions


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Advance Care Planning

Less focus on formal instructional documents

Legal focus primarily on naming a proxy

Discussion oriented (with proxy, family, healthcare providers)

More broadly focused on goals + values,spiritual questions, family matters

Less treatment focused, more on quality of life

Conversion of goals to a portable plan of care:POLST if available


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POLST Why It Is a Sea Change

Last 30 years: standardizing patient communications statutory advance directives

POLSTParadigm standardizing physicians EOL ordersin order to implement patients goals of care. Focus onhere and now, high probability crises.

POLST requires:

1. Find out patients wishes re: CPR, care goals(comfort vs. treatment), antibiotics, N&H.

2. Translate into doctors orders on visually distinct

(bright pink) med file cover sheet.3. Ensure form travels with patient.

At least 12 States have a version of POLST:CA, HI, ID, MT, NY, NC, OR, TN, UT, VT, WA, WV


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Default Surrogate Laws(Family Consent)

Range/Priority of Surrogates

Scope of Decision Making Authority

Triggers/Pre-conditions

How Disagreements are Handled

Close Friend and UnbefriendedPatient

Summary chart:

http://new.abanet.org/aging/Pages/StateLawCharts.aspx


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Make a Plan to Manage Money& Property

Planning for management of affairs whilealive helps maintain control to the

greatest extent possible Variety of legal tools Powers of Attorney

Representative Payee

Joint bank accounts Inter-vivos or Living Trusts

Advantages and disadvantages of each


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Powers of Attorney

For property

Durable since planning for incapacity

Document by which one person(principal) gives legal authority to another(agent) to act on behalf of the principal.

Generally must be signed & notarized. Governed by state law


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PoA Advantages/Disadvantages

Promotes autonomy puts you indrivers seat

Avoids guardianship

Cuts costs

Helps family members

Lack of monitoring

Unclear standards for agent conductLack of awareness of risks

Broad decision-making authority


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Types of POA Abuse

In creating of the POA (power given, not taken)

Incapacity at execution

Forgery/Fraud/Misrepresentation

Undue influence

Implementing POA (agent is a fiduciary)

Transactions exceeding intended authority

Transactions conducted for self-dealing Transactions contravening principals expectations


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Brooke Astors Son Guilty in Scheme

to Defraud Her

Wealthy NY socialite Brooke Astor, Alzheimers, age 105

Estate more than $180 million

Son served as power of attorney

Gave self unauthorized raise of $1 million Other counts of financial exploitation

Neglected mothers care while enriching self

Exemplifies financial

elder abuse


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Uniform Power of Attorney Act

Clear statement of agents duties

Act in accord with principals expectations, bestinterests

Stringent requirements for exercising hotpowers likely to dissipate property or alterestate plan

Third party refuse to honor if suspect abuse

Liability of agents who commit malfeasance

See www.nccusl.org .


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Other Options

Joint Bank Accounts: pros & cons Provides easy access to funds to pay bills Joint owners have complete access to all funds Funds may be available to pay joint owners debts Upon death surviving joint owner may become sole

owner regardless of will

Inter-vivos orLiving Trust: pros & cons Legal arrangement created by contract Holds property for the benefit a person or persons Can provide for management of assets during

incapacity, avoid probate and provide for care ofminors or disabled persons

Can be expensive to draft, to transfer property into thetrust and to pay a professional trustee (if used)


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Other Options

Representative Payee

If receive SSA, civil service, railroad retirement, VAbenefits, agency may require individual to be

appointed as a representative payee

Once appointed, the rep payee has authority tomanage the relevant income -- but not other income orassets.

Rep payee may have to file an annual report (SSA)


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Other Key Planning Considerations

Develop succession plan of a business Including power of attorney to run a business and buyout agreements

Consider other public benefits, if appropriate Including food stamps, state prescription drug benefit programs, energy

assistance

Prepare will Legal document that provides for distribution of some or all property at

death If a single parent of a minor or disabled child, can designate a guardian

of the child

Plan for care of Dependents Nominate or appoint a guardian for minor/disabled child Arrange for financial support for minor/disabled child


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Guardianship

Individual (or agency) appointed by court(probate, general jurisdiction) . . . .

With power and duty to make personal and/or

financial decisions . . . . On behalf of another person . . .

Whom court determines lacks decisional

capacity. Terminology guardian conservator and

more


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Guardianship:

A Double-Edged Sword Parens patriae roots of guardianship

Guardianship unpersons individual (Associated

Press, 1987) Loss of fundamental rights

Inherent Tension

Between rights and needs

Between autonomy and beneficence

Between self-determination and protection


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51 State Guardianship Laws;

Variability in Practice


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How is a Guardian Appointed?

Any person files petition

Notice, possible appointment of counsel,

guardian ad litem, court visitor Hearing

Judicial order plenary or limited

Bond


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Principle of Least Restrictive Alternative

Growing use of alternatives to guardianship

Representative payee

Power of attorney

Trust Supports such as money management

Guardianship as LAST RESORT

Enactment of limited guardianship provisions

Use of substituted judgment standard ofdecision-making


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Guardian Accountability Who Guards the Guardians?

Reports & AccountsProtection of AssetsCourt Review of Reports& Accounts

Investigation,Verification& SanctionsGuardian Training/Assistance

Funding for MonitoringGuarding the Guardians:PromisingPractices for

Court Monitoring,

AARP/ABA (2007)


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Conclusion

When faced with diagnosis like Alzheimersdisease, its critical to get financial and legalaffairs in order.

Communicate with family, close friends andtrusted legal/financial advisors.

Understanding options and making informeddecisions can help maximize control andminimize anxiety at a difficult time.

after the diagnosis (erica f. wood)

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