After attempting to cope with his mother’s diagnosis of dementia for several months, Joe has finally decided to research local nursing homes for his mother. However, he is concerned about the cost while protecting his mother’s multiple properties, which have been in the family for generations. During a vist, Lindsay, a social worker from the facility, reached out to Joe, offering to complete a MassHealth application for his mother at no-cost. While Joe likes the concept of this free service, he can’t help but wonder if there is a catch involved.

Employed by the nursing home, social workers and other nursing home advocates focus on the rights of the nursing home and not the resident. The nursing home has a vested interest in keeping someone on “private-pay” for as long as possible because their private pay-rates are much higher than the amount received in MassHealth/Medicaid reimbursement. This means more out-of-pocket costs for residents than may be necessary.

Further, even if nursing home advocates do have the best of intentions, the MassHealth/Medicaid process is riddled with complex rules and regulations that are difficult to navigate for those not educated in the eligibility requirements and advantageous planning opportunities available under MassHealth/Medicaid. For instance, an individual encouraged to apply too soon might be ineligible for an extended time period and have to pay privately for a longer duration. Alternatively, the “advocate” may not inform the family that they can pre-pay for funeral expenses as part of a spend down, thereby reducing the burden on family members when the applicant passes.

Individuals that enlist family members to fill out their MassHealth applications or file themselves may face similar problems. Unfamiliar with eligibility requirements and liable to miss prime planning opportunities, these individuals are likely to encounter harsh penalties or confusion when faced with the application process, as well as income and asset verifications. Once they receive their denial notice in the mail, it will be much more expensive to get an Elder Law attorney involved at that point. Additionally there are strict time periods that must be adhered to in order to have any change at being sucessful in a MassHealth/Medicaid appeal.

Nursing home advocates and family members, although the cheapest solution up front, do not have the requisite knowledge, skills, or ability to compose trusts, devise appropriate estate plans, and represent you in an appeal setting if the need should arise. Rectifying the mistakes of an advocate or self-handled application may be more costly than a properly executed plan formulated a skilled elder law attorney. By hiring an elder law attorney to guide the MassHealth application process, you will ensure that your savings, your spousal support, and your family’s inheritance will not be jeopardized by lost opportunities in a last minute planning strategy.

Hiring a lawyer to handle your MassHealth application is a necessary investment. Elder law attorneys can save clients and their family members an amount greater than the cost of their legal services. If you are interested in learning more about the MassHealth application process or long-term care planning, contact Vickstrom Law today!

Most everyone would say that they want to be independent and remain in their own homes as long as possible. This sense of autonomy can be kept in place longer than ever before due to medical advances, assistive devices, and in-home care provided by family members and private caretakers. However, what happens when an elder can no longer remain safely in their home and an adult child is trying to get them the help they need?

Esther is 89 years old. She has lived alone since the death of her husband 23 years ago. She gave up driving two years ago, but is regularly visited by her children and grandchildren, who take care of errands or drive her to handle things herself. Lately, she has been rather unsteady on her feet. Additionally, she has been very forgetful and once left the stove on all night. She is also having trouble remembering to take her medications. There were so many her daughter, Susan, sorts them every week into a pill box. Esther still forgets to take them and sometimes actually doubles up on doses. Susan can see its time for more help but Esther is adamant about not having strangers in the house and doesn’t want to end up in “one of those places…”

Many times, elders resent their adult children trying to help them.  In the elderly parents mind, they are still independent and completely able to handle their own affairs.  In the above example, Esther does not appreciate her daughter’s suggestion that they bring in some private home care, or that her mother visit an assisted living facility or rest home. She feels her children are being too pushy, and trying to take control.

But on the other side, Susan feels that Esther isn’t thinking clearly anymore. She is extremely hurt by her mother’s attitude and reaction. After all, Susan is just trying to help. 

The parent/child roles have been reversed, except unlike with young children, the adult child does not have the automatic right to make decisions for the elderly parent. Unless the child seeks to declare the parent incapacitated through a court ordered Guardianship or Conservatorship, or has the parent’s Health Care Proxy and/or Durable Power of Attorney activated, the child has to realize that in the eyes of the law, the parent may make their own decisions. And, unfortunately, people are allowed to make bad decisions.  However, it is important that the adult child watch the situation carefully and not get frustrated and leave the parent to their own devices.  Assisting does not mean taking over against their parent’s will. 

Too many children have simply given up when their “help” is not accepted. If one finds themselves in that situation, they can contact our office for assistance and suggestions for getting through to the parent, discussing the possible need for Guardianship, ensuring that the elder’s estate planning documents are in order, scheduling a medical evaluation, and/or perhaps referral to a geriatric care manager where appropriate.

The elderly years can be as challenging as the terrible twos, terrible terrible teens, and even the terrible twenties.  Elderly parents must be respected by the adult child who is trying to help, even if the parent/child roles have truly been reversed.

In April 2008, the Massachusetts Health Care Quality and Cost Council (MHCQCC) issued its annual report recommending that Massachusetts establish a pilot program to improve communication between patients and clinicians, and other interested parties, regarding end of life treatments. The MHCQCC found that many patients nearing the end of life were unaware of the treatment options available to them, or, if patients had been aware of such treatment options and had discussed them with their doctors previously, nothing was in place to ensure that their preferences were honored. Therefore, the Massachusetts legislature enacted legislation in August 2008 establishing a demonstrative program for the MOLST process in one community in Massachusetts: Worcester. (Yay, Worcester!)

The MOLST form is fairly simple and easy to read; the most difficult part is actually making the decisions and putting them down on paper. The form is only two pages long, and only two sections must be completed in order for the form to be honored. These two sections are Section D (patient information – specifically who is signing the document on behalf of the patient) and Section E (physician information). In   Section D, it is possible for the patient, the patient’s health care proxy, or the patient’s guardian to sign on his or her behalf. If a guardian is signing for the patient, the guardian must ensure that s/he has the legal authority under the guardian appointment to do so. This may require consultation with the patient or guardian’s Elder Law attorney.

If any other section of the form is not filled out, the health care agent is not limited in his or her decisions for life-sustaining treatment for the patient. Sections A, B, C, and F ask the difficult questions regarding resuscitation, intubation and ventilation, hospitalization, respiratory support, dialysis support, and artificial nutrition and hydration. It is critical that you speak with a physician before making these decisions so that you fully understand the meanings of the terms used and the potential consequences. Once these sections are filled out, they must be honored by all health care professions in Massachusetts, where clinically appropriate. The MOLST form is different from a Living Will or another document expressing your “final wishes” because it carries more authority and is more likely to be honored. A Living Will or final wishes document is only used by health care professionals to keep your wishes in mind when making decisions about treatment. While the MOLST form is not currently legally binding, health care professionals are strongly encouraged by the state to honor it.

Finally, Section G simply asks for the contact information of the health care agent. There is also room on the form for other treatment preferences, in which you can more clearly articulate your wishes. There is an expectation that the form will be reviewed throughout the patient’s life so that if his or her preferences change, those preferences will still be honored.

View a sample MOLST form here.

MOLST in Massachusetts from Commonwealth Medicine on Vimeo.

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated – and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so – as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”

But seriously, senior centers offer independence for aging adults. They play a very important role in the lives of elders today by encouraging them to become and remain social.

Socializing can help seniors with depression, dementia, or alzheimers. I know, you will say, Mom or Dad will not go to a senior center. Then make it easy for them. Go along with your parent for the day. Make it an outing and then take them to lunch. In most communities any aging adult who is 60 years old or older can join a senior center. You can also see the things that a senior center has to offer that Mom or Dad might be interested in or enjoy.   Knowing that your parent is at a center, or on an escorted day-trip can reduce the stress and anxiety you may have about your parents sitting home watching television all day or being alone. The main thing is to get them out and about.

Senior centers allow elders to develop a social network by making and meeting new friends. Senior centers offer programs and services like crafts, bingo, fitness, dances classes, travel to museums, computer classes, health screenings, informational speakers, daily meals, birthday luncheons to celebrate each member’s birthday and much more. Many senior centers also offer outings to do things such as live performances, fall foliage tours, and tours of Newport Mansions. Your loved one gets out of house, has an opportunity to socialize, while getting some light exercise and enjoying a good meal with great friends. Each senior center usually publishes a monthly calendar with a schedule of daily activities or programs.

To get your elder started, sign them up at your local center and tell them that they do not need to go everyday. They can start once a week, playing bingo, let’s say. This way they will not feel pressured. You will see that before you know it, Mom and/or Dad will be visiting the senior center on a daily basis. Suddenly catching up on their favorite television program may not be a priority anymore. (But hey, that’s what TiVo is for!)

So what if your parent/loved suffers from Alzheimers/Dementia and is too far gone to meaninfully participate at a Senior Center? Why not explore Adult Day options? These programs offer the socialization that some say is vital to keeping the disease at bay while also providing a safe, secure environment, specifically catered to your parent’s needs.

Check out this listing of Worcester area senior centers.

Thank you to Senior Living for contributing material for this blog.

Can’t we all just get along?  

I see it more and more and it really saddens me: families unable to “get along” when it comes to decision making for elder loved ones. It can be as simple as whether Mom and/or Dad need to meet with an Elder Law Attorney, to concerns over finances and inheritance issues, to whether siblings agree on who should serve as primary caregiver, and/or to whether assisted living/nursing home care is necessary.

Often as family members age, family dynamics can become more complicated. Conflicts that have simmered below the surface can boil up and make conversation impossible. Sometimes the elders are involved in the discussions, but unfortuntately sometime they are too far gone to meaninfully participate.

Either way, even the most harmonized family can sometimes hit a bad note or two and require some assistance.

(Dun, dun, dun, dun!) Enter the Elder Mediator. Mediation provides an opportunity for the Elder and all concerned members of the family to participate in creating a thoughtful plan for future. In most cases Elder Law Attorneys can act as Elder Mediators with certain issues. However the scope of the disagreements can often rest in other issues that are not related to the elder law topic. An Elder Mediator, working closely with your Elder Law Attorney, is trained to assist families in identifying the real issues, separating them from the crucial issues of planning for elder care, and developing the best plan of care.

National Public Radio has recognized the usefulness of elder mediation for families dealing with aging issues.

As baby boomers age and options for their care increase, we will all face many difficult choices concerning how we handle transitions during our elders’ declining years. Families will have to be able to evaluate resources, options and develop flexible strategies to support their elders. Even when not legally competent to make decisions, it is important to include an elder’s wishes and expressed preferences when putting a plan into place. Elder mediation is a rational first step for families to help them address their changing needs while enhancing problem solving/communications skills and avoiding messy litigation.

For example, an older person relying on her children to provide meals, transportation and help her with financial decisions finds it difficult to complain when one of her children takes advantage of her. If, for instance, the child takes her money, hits her or neglects her care, the parent may be threatened with loss of support from the child if the parent complains. The child may also use threats of violence to keep the parent in line.

It is estimated that 5 to 10% of elderly Americans are suffering abuse. According to the National Committee for the Prevention of Elder Abuse, more than 750,000 persons aged 60+ were victims of domestic abuse and that an estimated 84% of incidents are not reported to authorities, denying victims the protection and support they need. Much attention has been focused on abuse in nursing homes but most of the elder abuse in this country is at the hands of family members or other caregivers in the home.

What about the unreported cases? It is suspected that 9 out of every 10 actual cases of elder abuse and/or exploitation go unreported. The majority of the victims were females between the ages of 60-89 and 60% of the perpetrators were family members/relatives, while 24% were non-related paid caregivers.

There are a number of reasons why incidents of abuse, neglect, or exploitation are not reported to Adult Protective Services or other authorities. One of the most common reasons is the victim’s fear of losing support. Many of the perpetrators are family members and the victim fears that reporting the crime will result in removal of the caregiver, as the perpetrator may face incarceration or may discontinue relations with the victim once accused, charged, or convicted. Many of these victims fear that by reporting abuse they will be left alone and expected to care for themselves, or they will be forced to live in a nursing home.

Many states, including Massachusetts,have implemented mandatory reporting laws to assist in the prevention of abuse, neglect or exploitation of vulnerable adults. Massachusetts law requires doctors, nurses, social workers, police and other emergency responders, elder outreach workers, directors of home health agencies, and certain other workers to report elder abuse. If any of these mandated reporters knows of elder abuse and doesn’t report it, that person can be fined. A mandated reporter must call to report the abuse right away, and must file a written report within 48 hours.

In non-emergency situations, one can call the local Aging Services Access Point (ASAP) and ask for Protective Services (Massachusetts Area Agencies on Aging (AAA’s) and Aging Service Access Points (ASAP’s).

Prevention can only occur if there is awareness, the statutes are adhered to, and any suspicions of abuse, neglect or exploitation of vulnerable adults are immediately reported to Adult Protective Services and/or law enforcement.

As an elder law attorney, our conversation eventually moves to the business at hand and it’s much much easier for a client to get an idea of what they’ll be leaving behind if the items are right there. Important paperwork is never forgotten as it’s right where the client always keeps it. Clients tend to be more thoughtful and less distracted when in a familiar environment. With so much legal language to deal with, it’s better for a client to be relaxed and more attentive.

Ultimately, a home visit allows me to get to know my client and understand their needs better. It gives me the chance to be attentive to them without outside distraction. With seniors, I can also see their current state of living, if they have all the things they need and maybe attend to some previously unaddressed issues. What many might see as a bother – a housecall – I consider an honor and a blessing.