hometeam & rothkoff law group - legal documents to avoid a crisis
TRANSCRIPT
Legal Documents to Avoid a Crisis and Set Your Loved One up for Long-Term Success
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Rothkoff Law Group• Leading Elder Law firm in NJ and PA• Assists with legal, financial, physical and psychological challenges
associated with the aging process• Takes a “Life Care Planning” approach, incorporating social work to assist
families in advocacy for their loved ones.
Hometeam• Leading home care provider in NJ, PA and NY• Provides the best possible care by empowering caregivers with meaningful
careers and using technology to monitor care and keep families informed.
About Rothkoff and Hometeam
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• Last Will and Testament• General Durable Power of Attorney• Healthcare Power of Attorney/Healthcare
Directive
Essential Documents
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• Special Needs Planning– Disabled beneficiary– Beneficiary who is, or could become, eligible for
public benefits• Tax Planning
– Federal Death Tax/Unified Credit• Second Marriage/Step Children• Medicaid
Common Planning Issues
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• Life Insurance:– Confirm beneficiaries– Assure Agent/Executor knows where policy is
• Retirement Accounts/IRA/Qualified Plans:– Confirm beneficiaries– If beneficiary is the “Estate of” could create
income tax event
Beneficiary Designations
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• Funding Long Term Care– Private Pay– LTCI– Public Benefits– Veterans Benefits
• Long Term Care Insurance– May offset high costs of home care, assisted living,
and nursing home care.– When to purchase
• Linked Benefit Plans– Life Insurance and LTCI
Long Term Care Planning
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Legal Tools for Financial & Medical Decision Making
• Financial Management– Powers of Attorney– Joint Ownership of Assets– Living Trusts– Guardianship– Representative Payee Status
• Health Care– Health Care Power of Attorney– Living Will Declaration (Advanced Directives)– Guardianship– POLST
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Durable Financial Powers of Attorney
• Typically, the best option– Relatively inexpensive, but not “simple”– Allows principal to choose their agent, rather than rely
upon court– Avoids guardianship– Certain statutory forms
• Not just forms – The most important document• Immediate vs. “Springing”• Presumed to be durable • Financial & Health Care – Need both • Terminates upon death
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Powers of Attorney Con’t
• Must look at what POA authorizes• Issues to consider before signing POA:
– Should document give agent power to act whenever agent decides it is necessary, or only when someone other than agent determines you are incapacitated?
– How broad are the powers you want to give to agent? Gifting language?
– Name more than one person to serve together as co-agents?
– Who to name as a back up to take over if original agent cannot serve?
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Durable HCPOA
• Typical HCP concerns:– When I cannot interact with an alert & interactive
patient, who can give me authority to act?;– Is the agent authorized to act for the incapacitated
principal?;– If the medical provider follows the direction &
decisions of the agent, is he or she protected from repercussions?
• Should be a separate document from financial POA• Can be effective immediately• Much broader than a living will
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Living Will (NJ) • Conditions Covered –2 conditions
– Terminal illness = incurable & irreversible medical condition in advanced state which will result in death regardless of continued application of life-sustaining treatment
– Permanent Unconsciousness = persistent vegetative state, irreversible coma
• Treatment covered – All life-sustaining treatment, includes artificial nutrition & hydration if included in declaration.
• If neither condition met, living will not effective• Limited applicability/End of life
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Living Will - Requirements
• Signed by declarant or another on behalf of & at direction of declarant
• Witnessed by 2 persons 18 or older• No standard form• Health care provider shall make it part of medical record
when given copy.
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Living Will – When Effective
• Copy provided to attending physician– Original not required
• Physician determines declarant is incompetent & either in terminal condition or permanent unconsciousness.
• Must be confirmed by 2nd physician• If unwilling to comply, must assist in transfer to another
physician or provider who will honor it.• No effect on life or health insurance
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Living Wills – Practical Issues
• Only covers terminal illness or permanent unconsciousness, not Alzheimer’s dementia like condition.
• Powers to revoke may be exercised regardless of patient’s physical or mental condition. Presumption in favor of life.
• Not just forms• Need both HCPOA & LW – HCPOA broader
applicability• Schaivo case – good & bad
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Guardianship - Generally
• Court imposed surrogate decision making for an incapacitated person
• Last resort – Must be deemed incapacitated • Typically, no financial or health care POA• Generally, terminates authority under POA• Must be need for guardian• Avoidance = Properly drafted POA• Expensive & time consuming• Guardian authorized to make property &/or health
care decisions
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Types of Guardianships
• Limited guardianship– Court presumption– Least restrictive means– Used when partially incapacitated– Allows for much greater creativity– Courts still favor plenary guardianships
• Plenary guardianship– Totally incapacitated– Person no longer able to contract
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Guardianship – Who may serve
• Petitioner may be any person interested in the AIP’s welfare
• Any qualified individual, corporate fiduciary, or guardianship support agency
• Court required to give preference to person’s choice absent good cause
• Healthcare decision – healthcare facility• Guardianship support agency = guardian of last
resort, agency or office instead of person• State facilities – guardian of estate• Not serve – person whose interests conflict w/ AIP
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Guardianship - Procedure
• Petition w/ service to all interested parties• Filed in Chancery Court where AIP lives or residing in
LTC facility • Significant statutory requirements• AIP right to counsel• 2 physician's’ affidavits required• Guardian’s duties
– very specific– substituted judgment
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Emergency Guardianships
• Temporary guardianship• Failure to make appointment will result in irreparable
harm• Emergency guardian of person – effective no more
than 72 hours, subject to no more than 20 day extension
• Emergency guardian of estate – effective no more than 30 days
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Guardianship – Other Issues
• Return to capacity• Guardian estate planning/Medicaid planning
– Must obtain court approval• HIPAA applicability –obtaining medical documentation
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Importance of Pre-planning
• Avoid Crisis• Avoid need for guardianship• Have time to investigate housing and care options• Protect healthy spouse or individual w/ disability
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Dilemmas
• Financial abuse more relevant– Stricter laws regarding gifting/transfers– Potential loss of “key money”
• Protecting seniors vs. senior’s self-determination• Law assumes seniors’ decisions unimpaired unless
declared incapacitated by the court• Current economic climate
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How to learn more from Rothkoff Law Group
Jerold E. Rothkoff, Esq.
Email: [email protected]
Phone: (856) 616-2923
rothkofflaw.com
Contact us to learn more about:
● Life Care Planning
● Medicaid Planning and Asset Protection
● Estate Planning
● Estate Administration, Guardianship and Probate Litigation
● Veterans Benefits Planning
● Special Needs Planning