How to Make Health Care Decisions for Someone Else

January 23rd, 2015

By: Bernard A. Krooks, J.D., CPA, LLM (in taxation), CELA, AEP® (Distinguished)

Maybe you’ve been named guardian (of the person) for a family member, colleague, or friend. Maybe you’ve been listed as an agent in a health proxy. Maybe you’re a family member with authority to make health care decisions (New York, like a number of other states, permits family members or others to make most health care decisions in at least some cases). How you got there is not the point, at least not for today. Today’s question: how do you go about making decisions for someone else when you have been given the power — and responsibility — to do so?

For centuries the American common law (and its English predecessor) focused on the “best interest” of someone who was no longer able to make their own decisions. It was not until relatively recently that the concept of “substituted judgment” began to seep into legal discussions. Today the latter notion drives health care decision-making in most cases.

But what does that mean? One early description suggested that a person making decisions for someone else should try “to reach the decision that the incapacitated person would make if he or she were able to choose.” That means that the decision-maker should try to substitute the patient’s decision for his or her own, not the other way around. In other words, the guardian/agent/surrogate should first try to figure out what the patient/principal would want in the circumstances.

Let’s simplify some of the language, just to keep things from bogging down in legalisms. Let’s use “principal” for the person signing a health care proxy, or subject to a guardianship, or (however they got there) presently incapable of making decisions. The person making the decision, signing the hospital’s forms, choosing a facility, or whatever — we’ll call him or her the “surrogate”.

So now you’re the surrogate, and you’re trying to figure out what you should consider when making your decisions. Here’s a list (probably not comprehensive) of things you might look to:

Did the principal sign any documents? A living will, for instance, might give some insight into the principal’s wishes. There are plenty of other documents that might be useful, though — from worksheets filled out at a seminar on advance directives to letters to family members to descriptions of other patient’s circumstances.

Did you have any conversations with your principal? Maybe you talked about other patients in the news, and how your principal felt about their stories. Be careful here — we remember one client who adamantly said she didn’t want to “go through what Terri Schiavo did.” It wasn’t until we followed up with the client that we figured out that she meant that she thought it was terrible that the legal system allowed Ms. Schiavo to die. We had assumed that she meant she wouldn’t have wanted to be kept alive, but that was the exact opposite of her meaning.

Did anyone else have conversations with your principal? Ask family, friends, co-workers and others who might have discussed health care issues with the principal while they were still capable of forming a decision.

Ask your principal. Is he or she able to talk at all? Then ask for direction. That doesn’t mean you have to follow whatever a now-demented patient says he or she wants — the principal might simply respond affirmatively to almost every question, making the answer depend on how you ask. But just because you’ve been given responsibility for the decision it does not follow that your principal’s opinion is no longer relevant.

Consider your principal’s life history. Was he or she particularly religious, or irreligious? Do you know what family members would prefer (and whether your principal would be more likely to agree with or oppose the family)? Did other family members or acquaintances go through similar circumstances, and is your principal’s response helpful to you while making this decision?

Talk to the medical team. What seems like a major decision might not seem so significant after you’ve discussed the risks and burdens associated with a given procedure (or decision to forego a procedure).

If you can’t figure out what your principal would want, then you move from applying “substituted judgment” principles to determining the “best interests” of your principal. But that doesn’t necessarily mean that you have to approve treatment.

Weigh the “burdens” of treatment against the benefits. Is a proposed operation painful, dangerous, or uncertain? Or might it alleviate pain, make your principal more comfortable, or increase the odds of recovery?

Strive for consensus. You are supposed to be figuring out what your principal would want, but the input of family, friends and the medical community is worth considering in an attempt to avoid infighting, undercutting and acrimony. Your principal’s care might not be best-served by having a difficult situation made more tense.

As a last resort, consider submitting difficult choices to the courts for resolution. That gives everyone a chance to air their positions in a formal setting, and focuses the questions on the principal’s wishes — and care. But it is time-consuming and expensive, and should not be invoked unless there is real difficulty in making the correct decision.

It is a challenge to make health care decisions for someone else. It is also a terrific gift to the principal to accept the responsibility and discharge it carefully and well. Another day we’ll write about how you can make that job easier when you’re the principal rather than the surrogate. In the meantime, take the surrogate’s job seriously, and do your best to substitute your principal’s decisions for those you might make for yourself.

 

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LGBT Issues in Retirement – SAGE – Hilary Meyer & Catherine Thurston

January 20th, 2015

Bernard A. Krooks discusses LGBT Issues in Retirement with Hilary Meyer, Director of National Programs, and Catherine Thurston, Senior Director, Services and Training of SAGE (Services & Advocacy for Gay, Lesbian, Bisexual and Transgender Elders) on his first podcast of Peace of Mind with Bernie the Attorney for 2015.

 

 

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Guest Blog: Are You Worried about Outliving Your Money in Retirement? A Life Settlement could be a Game Changer for You.

January 7th, 2015

Cheerful senior couple moving into new home smiling at cameraOur guest blogger this week is Jamie Mendelsohn, Vice President, Ashar Group.

Due to medical advances and healthy lifestyles, many seniors are going to live longer than they planned on. As a result, seniors are working longer and delaying retirement to help compensate for an anticipated shortfall in retirement income. The Life Settlement option has emerged as a viable option to consider when it becomes apparent that you are in danger of outliving your savings and in need of liquidity to maintain your lifestyle for years to come. A life settlement is a liquidity option where you can appraise an unneeded or unaffordable life insurance policy that you currently own and potentially sell it for more than the cash surrender value. A study from the Government Accountability Office concluded that life settlements offered seniors approximately 8 times more than the surrender value as opposed to just letting their life insurance policy lapse. That’s additional income that can be used to fund long-term health care needs, retirement needs, or simply as a way to offset the costs of living on a fixed income while trying to keep pace with inflation.

So how do you know what a policy is worth? No different than your home or any other assets that you own, you can have your life insurance policy appraised or valued in the Secondary Market. While many seniors can benefit from a SMV®, Secondary Market Valuation, those who have health conditions that were developed after the policy was issued years ago, are the ones who benefit most. Ashar Group provides a simple online tool to help you evaluate if your policy might have hidden value that can be uncovered to help you supplement your retirement. It’s a quick and easy 7-question quiz that you can access at www.ashargroup.com/quiz/start.

Jamie Mendelsohn is a Vice President for the Ashar Group in Orlando, Florida. Ashar is a independent life settlement brokerage firm that partners with your advisor to design your case and represent you in the secondary market bidding process to assure that you get the highest offer possible. Jamie can be reached at Jamie@ashargroup.com.

 

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Which is Better: Guardianship or Power of Attorney?

December 17th, 2014

By: Bernard A. Krooks, Esq., Certified Elder Law Attorney

Here’s a question we get asked a lot: “which is better for me to get for my mother — a guardianship or a power of attorney?”

The question itself is misleading, and our answer almost never satisfies. The problem is simple: if your aging parent needs someone to make decisions (medical, financial or otherwise) for him or her, you almost never have a choice about whether to pursue getting a signed document (like a power of attorney) or a court order (like a guardianship). Why not? Because if your parent is able to sign a power of attorney, he or she is probably not a candidate for a guardianship.  Conversely, if you could get a guardianship order, your parent probably doesn’t have the legal capacity to sign a power of attorney.

A “guardianship” is a court proceeding in which one person is given decision-making authority over another person’s personal and financial matters.  New York even has a procedure for a “consent” guardianship, which would allow the court to appoint a guardian even though the person in question has capacity but is willing to allow appointment of a guardian.

In order to have the court appoint a guardian for someone else, you would need to show, by clear and convincing evidence, that the person you are seeking guardianship for (1) is unable to provide for his or her own personal needs and/or property management and (2) cannot adequately understand and appreciate the nature and consequences of such inability.  This determination is primarily based on the person’s functional level and functional limitations.

A power of attorney, on the other hand, does not involve courts at all.  Signing a power of attorney is a voluntary act undertaken by an individual with capacity who understands the purpose and effect of his or her signature. As you can see, that is likely not possible for most people for whom a guardian could be appointed.

So the question is usually not which approach would be “better” — it is which approach is possible. If the individual is not able to sign a power of attorney, we usually add our own question to the mix: is getting a guardian appointed the best way to handle the problems that have arisen — is it even necessary to pursue guardianship?

Now pose the question differently. You are an adult with full legal capacity, thinking about your future. You are worried about having someone available and able to take over your personal (health care) and financial decisions if you should become unable to do so yourself.  Is it better for you to sign a power of attorney, or should you simply rely on the legal system to establish a guardianship when the time comes for you?

The answer to THAT question is easy, at least in the vast majority of cases. The cost, difficulty, and invasion of your personal dignity involved in a guardianship almost always makes it better for you to sign a power of attorney now, while you can make your own choice. Who should NOT sign a power of attorney? Really only people who have no one trustworthy enough to take responsibility (and there are people in that unfortunate situation — too many people, in our experience) should make a conscious decision to NOT sign a power of attorney.

Notice that we have not distinguished here between health care decisions and financial decisions. That’s because the same values and decisions apply to both.  However, in New York, at least, there is one important difference between the two decisions: your next of kin might have the authority to make some health care decisions for you even though you have not signed a health care proxy (and no court proceedings have been initiated).  However, family members — even spouses — do NOT have any authority to handle your finances without a power of attorney.

Which is better? If you are in a position to plan for yourself, it is almost always a good idea to choose an agent (you can choose different financial and health care agents, if you’d like) and sign powers of attorney.  Do it now — don’t wait until you actually “need” the documents, because that will almost certainly be too late. Don’t rely on your belief that everyone knows what you want — that carries no weight in the legal system, unless it has been reduced to writing.

If you’re facing the problem from the adult child’s perspective, we’re sorry to say that it’s almost never relevant to tell you which approach is “better.” Usually it is a question of which is available.  We can help, but it is likely to be more expensive and difficult if your relative didn’t get around to signing a power of attorney.

 

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Making Changes to Medicare Part D Coverage

December 2nd, 2014

Medicare open enrollment is October 15 through December 7.  During this time, Medicare beneficiaries can make changes to their Medicare Part D coverage. Reviewing one’s options can ensure optimal coverage of prescription medications.

The key factors to review during open enrollment are:

  • Premiums – Some Medicare Part D plans will see a substantial increase in monthly premiums, while a few may actually decline in cost.
  • Medication coverage – Plans can alter which drugs are covered each year. In addition, some plans require prior authorization before covering certain drugs.
  • Co-payments and coinsurance – In 2015, all Medicare Part D plans will use tiered cost-sharing, in which the copay for a drug depends on the drug’s classification in the tiered system.
  • Preferred pharmacies – Most plans offer lower co-payments at in-network pharmacies.
  • Deductible – Some plans will be lowering their deductibles in 2015. It is important to compare the lower deductible to the higher premium that such plans often carry.

 

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Guest Blog: Palliative Care and Palliative Care Laws in New York: What Patients Should Know

November 21st, 2014

Our guest blogger this week is David C. Leven, JD, Executive Director, Compassion & Choices of New York

Palliative care can help improve your quality of life. You should know what palliative care is and how two New York State laws effective in 2011can help you learn about your palliative care options and receive timely palliative care.  The Palliative Care Information Act (PCIA), Public Health Law Section 2997-c,and the Palliative Care Access Act (PCAA), Public Health Law Section 2997-d, define palliative care as “health Care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient’s quality of life, including hospice care.” The care provided can address not only pain and other symptoms but depression, anxiety, psycho-social and spiritual issues as well.

Palliative Care Access Act (PCAA)

The PCAA  requires that  hospitals, nursing homes, home care agencies and enhanced and special needs assisted living residences establish policies and procedure to provide patients with advanced, life limiting conditions and illnesses who might benefit from palliative care, with information and counseling regarding such options appropriate to the patient.. It also requires that they facilitate access to appropriate palliative care and pain management consultations and services including but not limited to referrals consistent with patient needs and preferences.

Palliative Care Information Act (PCIA)

Terminally ill patients now have a clearly defined right to receive information and counseling about their palliative care and end-of-life options, including hospice. This will enable them to make informed treatment decisions during the final months of their lives. The law states, in part:

“If a patient is diagnosed with a terminal illness or condition, the patient’s attending health care practitioner shall offer to provide the patient with information and counseling regarding palliative care and end-of-life options appropriate to the patient, including but not limited to: the range of options appropriate to the patient; the prognosis, risks and benefits of the various options; and the patient’s legal rights to comprehensive pain and symptom management at the end of life; and information regarding other appropriate treatment options should the patient wish to initiate or continue treatment.”

The information and counseling under both laws should be provided to those lawfully authorized to make decisions for patients who lack capacity to make medical decisions, such as a health care agent.

What You Can Do to Get Palliative Care and the Benefits Required Under the Laws 

If you are a patient and believe that you may qualify for the benefits of either law or both laws or if you are a health care agent or surrogate for a patient who you believe has or may have a terminal or advanced life limiting illness or condition, then you might consider discussing this with the appropriate health care practitioner. If you are a health care professional and you believe that a patient of yours has not yet benefitted by the requirements of the PCIA and/or PCAA, then you might consider discussing this with the appropriate health care practitioner responsible for compliance with the applicable law (s) after conferring with the patient.

Resource: The New York State Department of Health website, questions and answers and guidance.

 

Learn more about Palliative Care and the Palliative Care Laws in New York, by visiting  Compassion and Choices.


Learn more about our elder law services by clicking here,  www.elderlawnewyork.com.

 

Guest Blog: Universal Design Elements Assist Aging in Place

November 14th, 2014

Our guest blogger this week is Priscilla Toomey, Associate Broker, JD, Top 5, ABR, SRES, Certified EcoBroker, Julia B. Fee Sothebys International Realty.

PRT Headshot_web

While many of us have heard the terms “universal design” and “aging in place,” their meanings and implications may be vague to us. They are universal movements and also have implications for house design going forward.

Basically, universal design is the concept that spaces should be aesthetically pleasing but also be easy to use by people with (or without) disabilities and by the aging population. A few examples  that are commonplace are audiobooks, slip-resistant surfaces, automatic doors, closed captioned television, curb cuts at corners, low-floor busses, Velcro, cabinets with pull-out shelves, lever handles instead of knobs for opening doors, and no-stair access to housing.

A major benefit of universal design is that it makes it easier for people to continue living in their own homes. We are living with an aging population.  By 2030, the US population aged 65 and over is expected to grow to 71.5 million people, from about half that number in 2006.  More and more people want to “age in place” (AIP) rather than go into assisted living, if at all possible.

Aging in place is a world-wide movement, because populations everywhere are living longer. The idea is to enable people to remain in their own homes as they age by providing resources and support services, rather than having them move into assisted living, which is far more costly and more disruptive. Universal design elements can help them do that, while postponing the need for expensive institutional care.

There are more aging in place organizations in Westchester than you may have imagined. There are currently three aging in place models in Westchester County and several organizations in different parts of the county encouraging the formation of AIPs. One close-by example of an aging in place resource is Gramatan Village in Bronxville, NY.

For legal needs, there are lawyers who specialize in a relatively new field known as “elder law”.  For real estate, agents who are interested in working with older clients can become certified as Seniors Real Estate Specialists (SRES). When you need the expertise of one or the other, it’s nice to know they’re there.

 Click here to contact Priscilla.


Learn more about our elder law services by visiting www.elderlawnewyork.com.

Choosing A Medicare Advantage Plan

November 10th, 2014

Medicare beneficiaries have a choice in health plans. They may choose Medicare Part A (hospital insurance) and Part B (physician and outpatient coverage), which together are also known as traditional or original Medicare, or they may choose Part C, a Medicare Advantage plan, which replaces Parts A and B. Medicare Advantage plans also usually come with their own prescription drug plan, thereby replacing Medicare Part D as well.

Medicare Advantage plans are offered by private health insurance companies that contract with the government to provide Medicare benefits. Most of them are managed care plans similar to preferred provider organizations (PPOs) or health maintenance organizations (HMOs). Medicare Advantage plans may cost more than traditional Medicare, but they may also offer additional benefits. It is important for beneficiaries to understand the options in order to make the best choice for their circumstances. For many, traditional Medicare is the default choice, but there are reasons why beneficiaries may prefer Medicare Advantage.

Some people may prefer the way Medicare Advantage plans handle prescription drug coverage. Most of them include prescription drug coverage in the cost of the plan, so the extra cost of Medicare Part D can be avoided. However, the total that beneficiaries pay depends on what prescriptions they have. The Medicare Plan Finder at Medicare.gov can help individuals determine how much they would pay for prescription drugs under various plans.

Another reason people choose Medicare Advantage plans is the limits on out-of-pocket spending. Under traditional Medicare, there is no out-of-pocket maximum, but Medicare Advantage plans are restricted to a cap for out-of-pocket expenditures. Whether a beneficiary would meet that cap depends on individual circumstances. In addition to the cap, Medicare Advantage coinsurance payments may be structured in a more beneficial way.

Beneficiaries may also choose Medicare Advantage because they want vision or dental plans included, or they want an alternative to purchasing “Medigap” coverage to pay for costs that traditional Medicare does not cover. Individuals should examine the costs and benefits of plans carefully to determine the right choice for them.

 

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Assets Can Be Spent Down Safely to Qualify for Medicaid

October 17th, 2014

Many seniors have to rely on Medicaid to pay the high cost of care in a skilled nursing facility. However, Medicaid is a needs-based program, which means that one must meet certain income and asset limits in order to qualify. Many seniors therefore find themselves needing to “spend down” their assets to become eligible, which can significantly affect their estate plans. Seniors cannot simply give assets to family members in order to qualify, as such transfers during Medicaid’s five-year “look back” period will trigger penalties.

By planning well ahead, many families are able to avoid the spend-down issue by purchasing long-term care insurance or transferring assets early enough that they are not affected by the look-back period. However, those who are in immediate need of long-term care do not have the luxury of protecting their assets in advance, and must focus on spending down assets in a way that enables them to qualify for Medicaid.

Certain “non-countable” assets do not have to be spent down or sold in order to qualify for Medicaid, including the home, a vehicle, household goods, personal effects, some prepaid funeral arrangements, and a limited amount of cash. In most states, therefore, one can safely spend down savings by using them to pay for non-countable assets. This may include paying off a mortgage or buying a new home, making repairs to a home, replacing home furnishings, replacing an old vehicle, or prepaying funeral expenses. In most cases, one may also pay off any legitimate debt, such as credit card debt.

In addition, most states permit a Medicaid applicant to make qualified payments for caregiving services in the home, when this helps the person stay at home and avoid nursing home costs. The caregiver who accepts such payments may be a family member, provided there is a written agreement and the caregiving services are not prepaid.

Medicaid rules can be complex, and they vary from state to state, so consultation with an experienced elder law or estate planning attorney is highly recommended.

 

Learn more about helping seniors and their families plan for the future by visiting www.elderlawnewyork.com.


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What Household Employees Should Know About the Affordable Care Act

September 23rd, 2014

By Tom Breedlove, HomePay by Breedlove

Nannies, senior caregivers, housekeepers and other in-home providers are in a unique situation compared to most employees. They don’t work for a large company with a Human Resources department looking out for their best interest. So when it comes to something like purchasing health insurance, it’s not as simple as filling out a form and letting someone else do all the work on the back end. And with the implementation of the Affordable Care Act, many household employees have questions about what is required of them.

While millions of people signed up for health insurance policies via the federal and state online exchanges last October, many others did not and will have a decision to make once again in the next few weeks. Open enrollment for health coverage starting in 2015 is scheduled to begin on November 15th – both for those buying policies for the first time and those whose policies are set to expire at the end of the year.

The most important thing for employees to understand is that the law itself is not changing in 2015 compared to 2014. That means all individuals are still required to have health insurance policy in place or pay a fine. For 2014, the fine is $95 or 1 percent of income for those that remain uninsured, whichever is higher. For 2015, this fine increases to either $325 or 2 percent of income, whichever is greater. For example, someone earning $35,000 per year would face a fine of $700.

However, there is a silver lining to this cloud. There are subsidies that many employees will qualify for based on their income level that will allow them to obtain health insurance at a discounted rate. The Kaiser Family Foundation has a helpful calculator tool that any employee can use to estimate the subsidy they could receive. It takes into account several factors, including income, number of adults enrolling in coverage, number of children, the employee’s resident state, and others.

IMPORTANT NOTE: In order to qualify for a subsidy, the employee must have documented wages – meaning they have to be paid legally. In most trust situations and many senior care employment arrangements, this is already taken care of, but it warrants a reminder that this subsidy is available for those working so hard to care for a family’s loved one. It’s just another benefit of legal pay to go along with others, such as Social Security income, Medicare health coverage, unemployment benefits, disability benefits, and the ability to secure loans/credit.

To learn more about health insurance coverage, please visit Care.com or go to healthcare.gov.


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